<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997
Commission file number 1-13018
-------
PETRO STOPPING CENTERS, L.P.
(Exact name of the registrant as specified in its charter)
DELAWARE 74-2628339
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
6080 SURETY DR.
EL PASO, TEXAS 79905
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (915) 779-4711
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No__
-
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<PAGE>
PETRO STOPPING CENTERS, L.P.
Index
<TABLE>
<CAPTION>
Page No.
<S> <C> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Unaudited Consolidated Balance Sheets
as of December 31, 1996 and September 30, 1997 3
Unaudited Consolidated Statements of Operations
for the Three and Nine Months Ended September 27, 1996 and September 30, 1997 4
Unaudited Consolidated Statement of Changes in Partners' Capital (Deficit)
for the Nine Months Ended September 30, 1997 5
Unaudited Consolidated Statements of Cash Flows
for the Nine Months Ended September 27, 1996 and September 30, 1997 6
Notes to Unaudited Consolidated Financial Statements 7-9
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 10-15
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 16
Item 6. Exhibits and Reports on Form 8-K 16
SIGNATURES 17
</TABLE>
2
<PAGE>
PART 1. Financial Information
Item 1. Financial Statements
PETRO STOPPING CENTERS, L.P.
UNAUDITED CONSOLIDATED BALANCE SHEETS
(in thousands)
<TABLE>
<CAPTION>
December 31, September 30,
1996 1997
---- ----
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 3,182 $ 20,357
Accounts receivable, net of allowance for
uncollectible accounts of $321 at December 31,
1996 and $313 at September 30, 1997 10,401 11,723
Inventories 15,195 14,437
Other current assets 1,404 2,228
Due from affiliates 2,091 1,003
-------- --------
Total current assets 32,273 49,748
Property and equipment, net 159,539 164,897
Deferred debt issuance and organization costs,
net of accumulated amortization of $6,728 at
December 31, 1996 and $5,438 at September 30,
1997 11,305 16,740
Other assets 5,983 5,171
-------- --------
Total assets $209,100 $236,556
======== ========
LIABILITIES AND PARTNERS' CAPITAL (DEFICIT)
Current liabilities:
Current portion of long-term debt $ 6,928 $ 4,250
Trade accounts payable 15,723 24,078
Accrued expenses and other liabilities 21,160 22,895
Due to affiliates 2,325 2,124
-------- --------
Total current liabilities 46,136 53,347
Notes payable 21,639 -
Long-term debt, excluding current portion 138,160 179,940
-------- --------
Total liabilities 205,935 233,287
-------- --------
Mandatorily redeemable preferred
partnership interests - 20,765
Commitments and contingencies
Partners' capital (deficit) 3,165 (17,496)
-------- --------
Total liabilities and partners'
capital (deficit) $209,100 $236,556
======== ========
</TABLE>
See accompanying notes to unaudited consolidated financial statements
3
<PAGE>
PETRO STOPPING CENTERS, L.P.
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 27, September 30, September 27, September 30,
1996 1997 1996 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net revenues (including motor fuel taxes)
Fuel $119,066 $123,090 $346,426 $366,186
Non-Fuel 29,351 32,190 82,739 88,923
Restaurant 12,113 12,929 35,367 36,424
-------- -------- -------- --------
Total net revenues 160,530 168,209 464,532 491,533
-------- -------- -------- --------
Costs and expenses:
Cost of sales (including motor fuel taxes) 127,026 131,716 368,971 389,960
Operating expenses 20,941 21,680 60,282 62,642
General and administrative 3,473 4,416 9,652 12,293
Depreciation and amortization 2,874 3,155 8,832 9,299
-------- -------- -------- --------
Total costs and expenses 154,314 160,967 447,737 474,194
-------- -------- -------- --------
Operating income 6,216 7,242 16,795 17,339
Interest expense 5,247 5,122 15,875 15,537
-------- -------- -------- --------
Income before extraordinary item 969 2,120 920 1,802
Extraordinary item - loss from
extinguishment of debt - - - (12,745)
-------- -------- -------- --------
Net income (loss) $ 969 $ 2,120 $ 920 $(10,943)
======== ======== ======== ========
</TABLE>
See accompanying notes to unaudited consolidated financial statements
4
<PAGE>
PETRO STOPPING CENTERS, L.P.
UNAUDITED CONSOLIDATED STATEMENT OF CHANGES IN PARTNERS' CAPITAL (DEFICIT)
For the Nine Months Ended September 30, 1997
(in thousands)
<TABLE>
<CAPTION>
Total
Partners'
General Limited Capital
Partners Partners (Deficit)
-------- -------- ---------
<S> <C> <C> <C>
Balances, December 31, 1996 $(8,477) $ 11,642 $ 3,165
Capital contributions - 11,047 11,047
Assignment of mandatorily
redeemable preferred partnership interests - (19,600) (19,600)
Accrual of preferred return on mandatorily
redeemable preferred partnership interests - (1,165) (1,165)
Net loss (657) (10,286) (10,943)
-------- -------- ---------
Balances, September 30, 1997 $(9,134) $ (8,362) $(17,496)
======== ======== =========
</TABLE>
See accompanying notes to unaudited consolidated financial statements
5
<PAGE>
PETRO STOPPING CENTERS, L.P.
UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 27, September 30,
1996 1997
-------------- --------------
<S> <C> <C>
Cash flows (used in) provided by
operating activities:
Net loss $ 920 $ (10,943)
Adjustments to reconcile net loss to
net cash provided by operating
activities:
Loss from extinguishment of debt - 12,745
Depreciation and amortization 8,832 9,299
Deferred debt issuance cost
amortization 1,048 1,320
Accretion of original issue
discount 710 47
Provision for losses on accounts
receivable 171 192
Increase (decrease) from changes in :
Accounts receivable (1,609) (1,514)
Inventories (1,542) 758
Other current assets (262) (824)
Due from affiliates (474) 1,088
Due to affiliates 82 (201)
Trade accounts payable 3,157 8,355
Accrued expenses and other
liabilities 6,136 1,735
-------- ---------
Net cash provided by
operating activities 17,155 22,057
-------- ---------
Cash flows (used in) provided by
investing activities:
Purchases of property and equipment (4,771) (12,013)
(Increase) decrease in other assets,
net (257) (1,150)
-------- ---------
Net cash used in investing
activities (5,028) (13,163)
-------- ---------
Cash flows (used in) provided by
financing activities:
Repayments of notes payable (21,000) (23,639)
Proceeds from notes payable 16,061 2,000
Repayments of long-term debt (2,469) (151,800)
Proceeds from long-term debt - 185,190
Capital contributions - 11,047
Payment of debt issuance costs (201) (14,517)
Decrease in cash overdrafts (6,314) -
-------- ---------
Net cash (used in) provided
by financing activities (13,923) 8,281
-------- ---------
Net increase in cash and cash
equivalents (1,795) 17,175
Cash and cash equivalents, beginning of
period 5,688 3,182
-------- ---------
Cash and cash equivalents, end of period $ 3,893 $ 20,357
======== =========
===============================================================================
Supplemental cash flow information -
Interest paid during the period $ 9,894 $ 12,640
Non-cash financing activity
Assignment of Preferred
Partnership Interests - 19,600
Accrual of Preferred Return - 1,165
</TABLE>
See accompanying notes to unaudited consolidated financial statements
6
<PAGE>
1) BASIS OF PRESENTATION
The interim consolidated financial statements of Petro Stopping
Centers, L.P. (the "Company") are unaudited, and certain information and
footnote disclosures normally included in the annual consolidated financial
statements have been omitted. While management of the Company believes that the
disclosures presented are adequate to make the information not misleading, it is
suggested that these statements be read in conjunction with the Company's 1996
annual report on Form 10-K. In the opinion of management, the accompanying
unaudited consolidated financial statements contain all necessary adjustments
(consisting of only normal recurring adjustments) for 1996 and 1997. The results
of operations for the nine-month period ended September 30, 1997 are not
necessarily indicative of the results to be expected for the full year.
On January 30, 1997 the Company completed a recapitalization (the
"Recapitalization"). As part of the recapitalization, affiliates of Chartwell
Investments, Inc. ("Chartwell") became limited and general partners of the
Company, an affiliate of Mobil Oil Corporation ("Mobil Long Haul") became a
limited partner of the Company and Sequoia Ventures, Inc. and Roadside, Inc.
(collectively, the "Fremont Partners") sold all of their partnership interests
in the Company (See Note 2).
2) RECAPITALIZATION
On January 30, 1997, the Company consummated a transaction, in which
Chartwell and Mobil Long Haul invested $20.7 million and $15.0 million,
respectively (the "Equity Investment"), in order to directly acquire the
partnership interests of the Company owned by the Fremont Partners for
approximately $25.6 million and invested approximately $10.1 million in the
Company. James A. Cardwell, Sr., James A. Cardwell, Jr. and certain of their
affiliates (collectively, the "Cardwell Group") maintained their capital
investment in the Company. Kirschner Investments ("Kirschner"), a Company
franchisee, invested $1.0 million in the Company (the "Kirschner Investment").
Following the Equity Investment and the Kirschner Investment, the common
partnership interests of the Company are owned by Chartwell (approximately
50.8%), the Cardwell Group (approximately 39.9%), Mobil Long Haul (approximately
7.4%), and Kirschner (approximately 2.0%), and the preferred partnership
interests are owned by Mobil Long Haul ($12.0 million) and the Cardwell Group
($7.6 million). Chartwell and the Cardwell Group own both general and limited
partnership interests in the Company, and Mobil Long Haul and Kirschner own only
limited partnership interests in the Company. Mobil Oil Company and the Company
also entered into certain supply and marketing agreements in connection with the
Recapitalization.
As part of the Recapitalization, the Company issued $135 million of 10
1/2% Senior Notes due 2007 (the "New Notes"), and repurchased approximately 94%
of its Existing 12 1/2% Senior Notes due 2002 (the "Old Notes") and
approximately 99% of its outstanding debt warrants (the "Debt Warrants").
The Company also amended its senior collateralized credit facility
(the "Old Credit Agreement" and, as amended, the "New Credit Agreement"). The
New Credit Agreement consists of a $25.0 million revolving credit facility (the
"Revolving Credit Facility"), a $14.0 million Term Loan A, a $30.0 million Term
Loan B and a $40.0 million Expansion Facility (the "Expansion Facility"). The
New Credit Agreement is collateralized by substantially all of the Company's
assets and the partnership interests of Mobil Long Haul and Chartwell and
guaranteed by each of the Company's subsidiaries, whose guarantees in turn are
collateralized by substantially all of such subsidiaries' assets.
In the first quarter of 1997, the Company recognized an extraordinary
charge of $12.7 million relating to amendment of the Old Credit Agreement,
retirement of the Old Notes and Debt Warrants and the write-off of deferred debt
issuance costs.
Aggregate yearly term loan principal payments under the New Credit
Agreement are as follows: (i) $2.0 million in 1997; (ii) $3.0 million in 1998;
(iii) $4.5 million in 1999; (iv) $5.5 million in 2000; (v) $1.5 million in 2001;
(vi) $13.5 million in 2002; and (vii) $14.0 million in 2003.
7
<PAGE>
3) ENVIRONMENTAL LIABILITIES AND EXPENDITURES
Accruals for environmental matters are recorded in operating expenses
when it is probable that a liability has been incurred and the amount of the
liability can be reasonably estimated. The measurement of environmental
liabilities is based on an evaluation of currently available facts with respect
to each individual site and considers factors such as existing technology,
presently enacted laws and regulations and prior experience in remediation of
contaminated sites. Such liabilities are exclusive of claims against third
parties and are not discounted.
4) INVENTORIES
The following is a summary of inventories at December 31, 1996 and
September 30, 1997:
<TABLE>
<CAPTION>
1996 1997
--------- ---------
(IN THOUSANDS)
<S> <C> <C>
Motor fuels and lubricants $ 5,074 $ 4,481
Tires and tubes 2,993 3,191
Merchandise and accessories 7,531 7,063
Restaurant and other 726 831
Less reserve for obsolescence (1,129) (1,129)
------- -------
Total inventories $15,195 $14,437
======= =======
</TABLE>
In connection with new systems implemented in 1996, the Company
identified items that were excess or obsolete inventory. The criteria
established is merchandise in excess of a one year supply. The Company has
established a reserve for obsolete and excess inventory amounting to
approximately $1.1 million.
5) PROPERTY AND EQUIPMENT
Property and equipment is summarized at December 31, 1996 and
September 30, 1997 as follows:
<TABLE>
<CAPTION>
ESTIMATED
USEFUL
LIVES
(YEARS) 1996 1997
---------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Land -- $ 34,970 $ 36,079
Buildings and improvements 30 94,244 99,675
Furniture and equipment 3-10 40,396 45,866
Leasehold improvements 7-30 20,238 20,234
Facilities under development -- 141 148
-------- --------
189,989 202,002
Less accumulated depreciation and 30,450 37,105
amortization -------- --------
Net property and equipment $159,539 $164,897
======== ========
</TABLE>
Facilities under development include costs associated with new
facilities and major renovations of existing facilities. Future commitments
associated with major renovations of existing facilities totaled approximately
$1.4 million at September 30, 1997. There were no future commitments associated
with new construction of facilities at September 30, 1997.
6) NOTES PAYABLE
Notes payable at December 31, 1996 consisted of a five-year revolving
credit facility under the Old Credit Agreement under which up to $35,000,000 was
available (the "Old Facility"). The Old Credit Facility was to mature in June
1999. Interest was paid monthly at 1.5% over the bank's prime rate or 2.75% over
the Eurodollar rate (the choice of which is determined by the Company at time of
borrowing). Borrowings under the Old Facility were collateralized by
substantially all of the Company's assets. The balance outstanding on the Old
Facility was $21,639,000 as of December 31, 1996, all of which was repaid in
connection with the amendment and restatement of the Old Credit Agreement in the
Recapitalization.
There were no borrowings under the Revolving Credit Facility, as described in
Note 2, as of September 30, 1997.
8
<PAGE>
6) NOTES PAYABLE (CONTINUED)
Also outstanding at December 31, 1996 under the Old Facility and at
September 30, 1997 under the Revolving Credit Facility were standby letters of
credit principally related to unfunded insurance claims in the amounts of
$3,150,000 and $3,632,000, respectively, in addition to other various standby
letters of credit of approximately $500,000 and $405,000, respectively.
7) COMMITMENTS AND CONTINGENCIES
The Company is involved in various litigation incidental to the
business for which estimates of losses have been accrued, when appropriate. In
the opinion of management, such proceedings will not have a material adverse
effect on financial position or results of operations.
8) MANDATORILY REDEEMABLE PREFERRED PARTNERSHIP INTERESTS
On January 30, 1997, the Company issued mandatorily redeemable
preferred partnership interests with an assigned value of $19,600,000 to Mobil
Long Haul ($12.0 million) and the Cardwell Group ($7.6 million). The
mandatorily redeemable preferred partnership interests are entitled to
cumulative preferred returns of 9.5% for preferred interests owned by Mobil Long
Haul and 8.0% for preferred interests owned by the Cardwell Group, and are
subject to mandatory redemption 270 days after the tenth anniversary of the date
of closing of the Recapitalization, which is subsequent to the maturity date of
the New Notes.
The preferred returns on the mandatorily redeemable preferred
partnership interest accrue, but are only payable in cash if permitted by the
Company's then existing debt instruments. The Indenture governing the New Notes
and the New Credit Agreement restrict the payment of dividends on mandatorily
redeemable preferred partnership interests.
At September 30, 1997, the Company had accrued preferred returns on
the mandatorily redeemable preferred partnership interests amounting to
$1,165,000, with a corresponding increase in partners' deficit.
9) RELATED PARTY TRANSACTIONS
Included in the costs of the Recapitalization discussed at Note 2 are
fees and expenses paid to Chartwell of approximately $3.1 million pursuant to
the terms of the financial advisory agreement between the Company and Chartwell.
9
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
GENERAL
Recapitalization
On January 30, 1997, Petro Stopping Centers, L.P., (the "Company")
consummated a transaction in which Chartwell Investments, Inc. ("Chartwell") and
Mobil Long Haul, Inc. ("Mobil Long Haul") invested $20.7 million and $15.0
million, respectively (the "Equity Investment"), in order to directly acquire
the partnership interests of the Company owned by Sequoia Ventures, Inc. and
Roadside, Inc. (collectively the "Fremont Partners") for approximately $25.6
million and to invest approximately $10.1 million in the Company. James A.
Cardwell Sr., James A. Cardwell Jr. and certain of their affiliates
(collectively, the "Cardwell Group") maintained their capital investment in the
Company. Kirschner Investments ("Kirschner"), a Company franchisee, invested
$1.0 million in the Company (the "Kirschner Investment"). Following their Equity
Investment and the Kirschner Investment, the common partnership interests of the
Company are owned by Chartwell (approximately 50.8%), the Cardwell Group
(approximately 39.9%), Mobil Long Haul (approximately 7.4%), and Kirschner
(2.0%), and the preferred partnership interests of the Company are owned by
Mobil Long Haul ($12.0 million) and the Cardwell Group ($7.6 million). Chartwell
and the Cardwell Group own both general and limited partnership interests in the
Company, and Mobil Long Haul and Kirschner own only limited partnership
interests in the Company. Mobil and the Company also entered into certain supply
and marketing agreements in connection with the Recapitalization (as defined).
As part of the Recapitalization, the Company issued $135 million of 10 1/2%
Senior Notes due 2007, (the "New Notes") and made a tender offer (the "Tender
Offer") for all of, and repurchased approximately 94% of, its 12 1/2% Senior
Notes due 2002 (the "Old Notes") and approximately 99% of the outstanding debt
warrants (the "Debt Warrants").
The Company also amended its senior collateralized credit facility (the
"Old Credit Agreement" and, as amended, the "New Credit Agreement"). The New
Credit Agreement consists of a $25.0 million revolving credit facility (the
"Revolving Credit Facility"), a $14.0 million Term Loan A, a $30.0 million Term
Loan B and a $40.0 million Expansion Facility (the "Expansion Facility"). The
New Credit Agreement is collateralized by substantially all of the Company's
assets and the partnership interests of Mobil Long Haul and Chartwell and
guaranteed by each of the Company's subsidiaries, whose guarantees in turn are
collateralized by substantially all of such subsidiaries' assets.
The Recapitalization consists of the Equity Investment, the Tender Offer,
the Kirschner Investment, the issuance of the New Notes and the entering into of
the New Credit Agreement.
In the first quarter of 1997, the Company recognized an extraordinary
charge of $12.7 million relating to amendment of the Old Credit Agreement,
retirement of the Old Notes and Debt Warrants and the write-off of deferred
financing costs.
10
<PAGE>
Ongoing Operations
The following table sets forth the development of the Company's
Stopping Center network since 1993.
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30
------------------
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Company-operated Stopping Centers:
Full-sized...................... 20 21 23 23 25
Petro:2 :....................... 3 3 3 3 3
Franchised....................... 12 12 14 15 17
Independently operated........... 1 1 1 - -
---- ---- ---- ---- ----
Total Stopping Centers.......... 36 37 41 41 45
==== ==== ==== ==== ====
</TABLE>
The following table sets forth information on Stopping Centers opened
since January 1, 1993, all of which were full-sized facilities.
LOCATION DATE OPENED
Company-operated Stopping Centers:
Laramie, Wyoming October 1993
Medford, Oregon February 1995
Ocala, Florida June 1995
N. Baltimore, Ohio August 1997
N. Little Rock, Arkansas September 1997
Franchised:
Fargo, North Dakota November 1994
Carnesville, Georgia January 1995
York, Nebraska December 1996
Scranton, Pennsylvania May 1997
During the third quarter of 1997 the Company acquired two locations.
The new sites acquired were North Baltimore, Ohio and North Little Rock,
Arkansas. The sites acquired were existing truck stops. The North Baltimore site
is leased at $560,000 per year. The North Little Rock site was purchased for
$5.5 million. The Company opened a stand-alone Petro:Lube in Franklin, Kentucky
in August 1996 in addition to new Petro:Lubes at its San Antonio, Beaumont and
Medford locations in June 1994, January 1995 and April 1996, respectively. At
September 30, 1997, the Company had no new Stopping Centers under construction.
The approximate construction cost of a new stopping center (exclusive of land)
is between $7.0 and $9.5 million.
The Company operates 28 truck stop facilities selling diesel fuel and
gasoline, of which 25 are full size facilities. Full sized facilities include a
Diesel Fuel Island, the Iron Skillet Restaurant, a Petro:Lube and a Travel
Center. In addition, nine of the 25 facilities also have separate convenience
stores. The Company also operates three Petro:2 facilities which are a smaller
version of the full size facility with various fast food offerings. The Company
has 17 additional locations which operate under franchise agreements.
Historically, the Company's revenues at each of its full-sized
Stopping Centers were recorded through the following divisions; diesel fuel
island, restaurant, Petro:Lube, and travel and convenience store. Beginning with
the first quarter of 1997 and in connection with new management, the
presentation format for results of operation has been changed to reflect
revenues from fuel, non-fuel and restaurant. The Company derives its revenues
from the sale of fuels, diesel and gasoline, non-fuel items including the sale
of merchandise and offering of services including truck tire sales and
preventative maintenance, weighing scales, showers, laundry, video games and
other operations, and its restaurant operations which
11
<PAGE>
includes Iron Skillet and certain fast-food operations. The presentation will
allow management to focus more closely on the major sources of revenues of the
business. The other operations included in non-fuel revenue includes franchise
royalties, rental revenue from video poker operations in Louisiana and a motel
and RV park in Oregon.
The Company's fuel revenues and cost of sales include federal and
state motor fuel taxes. Such taxes were $44,190,000 and $47,967,000 for the
three-month periods ended September 27, 1996 and September 30, 1997,
respectively, and $129,470,000 and $137,062,000 for the nine-month periods ended
September 27, 1996 and September 30, 1997, respectively.
Taxes. No provision for income taxes is reflected in the financial
statements as the Company is a partnership for which taxable income and tax
deductions are passed through to the individual partners.
RESULTS OF OPERATIONS
NINE MONTH PERIOD ENDED SEPTEMBER 30, 1997 COMPARED TO NINE MONTH PERIOD ENDED
SEPTEMBER 27, 1996
Overview. The Company's net revenues increased 5.8% to $491,533,000
in the first nine months of 1997 from $464,532,000 in the first nine months of
1996. The increase was due principally to a 6.1% increase in fuel gallons and
an increase of 7.5% and 3.0% in non fuel and restaurant sales, respectively,
from the prior year. The increases in revenues were offset by product costs,
associated with higher levels of revenue, higher general and administrative
expenses and slightly higher operating expenses over the prior year. General
and administrative expenses increased to approximately $12.3 million from $9.7
million for the same period in the prior year. This increase was principally
due to an increase in the accrual of certain employee expenses, certain
transition costs for new programs, professional and travel related expenses in
the current year.
Fuel. Revenues increased 5.7% to $366,186,000 in 1997 from
$346,426,000 in 1996. Fuel revenues increased due to a 6.1% increase in fuel
volumes. On a comparable unit basis fuel volumes increased 5.6%. Fuel costs
were up in the first quarter, but have declined in the second and third
quarters. On a per gallon basis, margins remained relatively flat compared to
fuel margins in the prior year's period.
Non-Fuel. Revenues increased 7.5% to $88,923,000 in 1997 from
$82,739,000 in 1996. On a comparable unit basis sales increased 7.2%. Gross
margins increased 7.4% to $48,613,000 in 1997 from $45,281,000 in 1996. This
increase was due to improved cost management.
Restaurant. Revenues increased 3.0% to $36,424,000 in 1997 from
$35,367,000 in 1996. On a comparable unit basis revenues increased 1.9%.
Management implemented certain menu changes at its Iron Skillet Restaurants in
the first quarter designed to enhance revenues, which is contributing to the
increased sales. Gross margin in the restaurants improved by approximately 4.0%
in total and approximately 3.0% on a comparable unit basis. The improvement is
due in part to management focus on costs and implementation of menu changes.
Costs and Expenses. Total costs and expenses increased 5.9% to
$474,194,000 in the first nine months of 1997 from $447,737,000 for the same
period in 1996. On a comparable unit basis, total costs and expenses increased
5.6% in the first nine months of 1997. Costs of sales increased $20,989,000 or
5.7% in 1997 from 1996. The increase is due to higher fuel and product costs
for both fuel and non-fuel revenue streams. Operating expenses increased
$2,360,000 or 3.9% to $62,642,000 in 1997. The increase is primarily due to
employee related expenses. General and administrative expenses increased to
approximately $12.3 million from $9.7 million in the prior year period. This
increase was principally due to an increase in the accrual of certain employee
expenses, certain transition costs for new programs, professional and travel
related expenses in the current year.
12
<PAGE>
Interest Expense. Interest expense decreased $338,000 to $15,537,000
during the first nine months of 1997 compared to 1996 due to lower interest
rates, combined with a reduction in amortization of deferred debt issuance
costs, offset by a higher level of debt outstanding.
Income before extraordinary item. The Company reported income before
extraordinary item of $1,802,000 in 1997 as compared to $920,000 for 1996.
Extraordinary item. Extraordinary item reflects a charge to earnings
of approximately $12.7 million relating to amendment of the Old Credit
Agreement, retirement of Old Notes and Debt Warrants and the write-off of
deferred debt issuance costs.
Net loss. Net loss reflects loss of $10,943,000 for 1997 after the
extraordinary item compared to a reported net income of $920,000 for 1996.
QUARTER ENDED SEPTEMBER 30, 1997 COMPARED TO QUARTER ENDED SEPTEMBER 27, 1996
Overview: The Company's net revenues increased 4.8% to $168,209,000 in
the third quarter of 1997 from $160,530,000 in the third quarter of 1996. This
increase was due principally to a 9.6% increase in fuel gallons and increases in
non fuel sales, partially offset by a decline in fuel selling price per gallon.
On a comparable unit basis fuel gallons increased 8.2%. The increase in revenues
was offset by volume related costs and slightly higher operating expenses over
the prior year period. General and administrative expenses increased to
approximately $4.4 million from $3.5 million in the prior year period. This
increase was principally due to an increase in the accrual of certain employee
expenses, professional and travel related expenses in the current period.
Fuel. Revenues increased 3.4% to $123,090,000 in 1997 from
$119,066,000 in 1996. The increase was due to a 9.6% increase in fuel volumes,
offset by a 5.7% decrease in selling price per gallon sold. On a comparable unit
basis fuel volumes increased 8.2%. The decline in selling price was the result
of a reduction in wholesale product costs. On a per gallon basis, margins
increased approximately 2.8% compared to the prior year.
Non-Fuel. Revenues increased 9.7% to $32,190,000 in 1997 from
$29,351,000 in 1996. On a comparable unit basis sales increased approximately
8.8%. Gross margins increased 8.1% to $17,599,000 in 1997 from $16,281,000 in
1996.
Restaurant. Revenues increased 6.7% to $12,929,000 for the current
year period compared to $12,113,000 in the prior year. On a comparable unit
basis revenues increased 3.6%. Management implemented certain menu changes at
its Iron Skillet Restaurants in the first quarter designed to enhance revenues,
which is contributing to the increased sales. Gross margin in the restaurants
improved by approximately 3.8% on a comparable unit basis. The increase is due
in part to management focus on costs.
Costs and Expenses. Total costs and expenses increased 4.3% to
$160,967,000 in the third quarter of 1997 from $154,314,000 in 1996. On a
comparable unit basis total costs and expenses increased 4.1% in the third
quarter of 1997. Costs of sales increased 3.7% to $131,716,000 in 1997 from
$127,026,000 in 1996. The increase is due to volume costs associated with higher
revenue levels and the two acquired sites. Operating expenses increased
$739,000 or 3.5% to $21,680,000 in 1997. On a comparable unit basis operating
expenses increased 1.9% in 1997. The increase is primarily due to employee
related expenses. General and administrative expenses increased to
approximately $4.4 million from $3.5 million in the prior year period. This
increase was principally due to an increase in the accrual of certain employee
expenses, professional and travel related expenses in the current period.
Interest Expense. Interest expense decreased $125,000 to $5,125,000
during the third quarter of 1997 compared to 1996 due to lower interest rates,
combined with a reduction in amortization of deferred debt issuance costs,
offset by a higher level of debt outstanding.
13
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Income before extraordinary item. The Company reported income before
extraordinary item of $2,120,000 in 1997 as compared to $969,000 for 1996.
Extraordinary item. No extraordinary items were reflected during the
third quarter of 1997 or the third quarter of 1996.
Net income. Net income for the third quarter of 1997 was $2,120,000,
compared to $969,000 for the comparable period in 1996.
LIQUIDITY AND CAPITAL RESOURCES
Capital expenditures totaled $12,013,000 for the first nine months of
1997 and $4,771,000 for 1996. Included in the capital expenditures for 1997
were funds spent on the acquisition of the North Baltimore, Ohio and North
Little Rock, Arkansas locations. Additional expenditures were due to rebranding
and fuel automation at various locations and the Company's information systems.
Capital expenditures for 1996 included funds spent on the construction of the
new Petro:Lube facilities in Medford, Oregon and Franklin, Kentucky.
The Company has a $25.0 million revolving line of credit, that at
September 30, 1997 had letters of credit issued for approximately $4.1 million,
resulting in an availability of approximately $20.9 million. As of September
30, 1997 there were no borrowings on the line of credit.
The term loans made to the Company under the Credit Facility Agreement
require the Company to make quarterly payments of principal. Aggregate yearly
term loan principal payments under the New Credit Agreement are as follows: (i)
$2.0 million in 1997; (ii) $3.0 million in 1998; (iii) $4.5 million in 1999;
(iv) $5.5 million in 2000; (v) $1.5 million in 2001; (vi) $13.5 million in 2002;
and (vii) $14.0 million in 2003.
The Company had negative working capital of $3,599,000 at September
30, 1997 and negative working capital of $13,863,000 at December 31, 1996.
Negative working capital is normal in the truckstop industry. Diesel fuel
inventory turns every two to three days, which is significantly faster than
payment is required. The truckstop business is an industry that generates a
large amount of cash business with relatively low levels of inventories and
receivables as a percentage of revenues. A substantial majority of the
Company's sales are cash (or the equivalent in the case of credit card sales or
sales paid for by check on a daily basis by third-party billing companies).
Accrual of dividends on mandatorily redeemable preferred partnership
interests amounted to $1,165,000 for the nine months ended September 30, 1997.
The dividends are only payable in cash if permitted by the Company's then
existing debt instruments. The Indenture governing the New Notes and New Credit
Agreement restrict payment of dividends on mandatorily redeemable preferred
partnership interests.
Insurance: The Company, up to certain limits, pays its own workers'
compensation and general liability claims. Through September 30, 1997, the
Company has paid claims aggregating $1,500,000 and $605,000 relating to workers
compensation and general liability claims, respectively. The Company believes
it provides an accrual adequate to cover both known and incurred, but not
reported, claims.
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Recapitalization:
In connection with the Recapitalization, the Old Credit Agreement was
amended and borrowings thereunder, 94% of existing Old Notes and 99% of
outstanding Debt Warrants were repaid with borrowings under the New Credit
Agreement, the net proceeds from the sale of the New Notes, a portion of the
proceeds of the Equity Investment and the proceeds of the Kirschner Investment.
The New Credit Agreement provides for a $25.0 million revolving credit facility
(the "Revolving Credit Facility"), a $40.0 million Expansion Facility, a $14.0
million Term Loan A and a $30.0 million Term Loan B.
The Revolving Credit Facility permits the Company to borrow, repay and
reborrow up to $25.0 million at any time until the fifth anniversary of the date
of the recapitalization, the proceeds of which may be used for working capital
and other corporate purposes. Up to $5.0 million of the Revolving Credit
Facility is available for the issuance of standby and documentary letters of
credit. The Expansion Facility permits the Company to borrow, repay and
reborrow up to $40.0 million for the acquisition and development of new Stopping
Centers and stand-alone Petro:Lubes at any time until the third anniversary of
the date of the recapitalization. Term Loan A is repayable in 15 quarterly
installments, the first of which was made on September 30, 1997. Term Loan B is
repayable in 26 quarterly installments, the first of which was made on September
30, 1997.
Borrowings under the New Credit Agreement are collateralized by
substantially all of the Company's assets and the partnership interests in the
Company held by Mobil Long Haul and Chartwell and guaranteed by each of the
Company's subsidiaries, which guarantees in turn are collateralized by
substantially all of such subsidiaries' assets.
Management of the Company believes that internally generated funds,
together with amounts available under the Revolving Credit Facility, will be
sufficient to satisfy its cash requirements for operations through 1997 and the
foreseeable future thereafter. The Company also expects that expansion and
future acquisitions would be financed from funds generated from operations,
borrowings under the Revolving Credit Facility and the Expansion Facility and
additional financings.
ENVIRONMENTAL
Accruals for environmental matters are recorded in operating expenses
when it is probable that a liability has been incurred and the amount of the
liability can be reasonably estimated. The measurement of environmental
liabilities is based on an evaluation of currently available facts with respect
to each individual site and considers factors such as existing technology,
presently enacted laws and regulations and prior experience in remediation of
contaminated sites. Such liabilities are exclusive of claims against third
parties and are not discounted.
The Company is subject to contingencies pursuant to environmental laws
and regulations that in the future may require the Company to take action to
correct the effects on the environment of prior disposal practices or releases
of chemical or petroleum substances by the Company or other parties. The
Company has accrued for certain environmental remediation activities consistent
with the policy set forth in Note 3 to the consolidated financial statements.
At September 30, 1997, such accrual balance amounted to approximately $184,000
and, in management's opinion, was appropriate based on existing facts and
circumstances. Under the most adverse circumstances, however, this potential
liability could be significantly higher. In the event that future remediation
expenditures are in excess of amounts accrued, management does not anticipate
that they will have a material adverse effect on the consolidated financial
position or results of operations of the Company. At September 30, 1997, the
Company has a receivable of approximately $240,000 related to recoveries of
certain remediation costs from third parties.
15
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PART II. OTHER INFORMATION
Item 1. Legal Proceedings
The Company is involved in various litigation incidental to the
business for which estimates of losses have been accrued, when appropriate. In
the opinion of management, such proceedings will not have a material adverse
effect on financial position or results of operations.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit 10 - Operating Lease Agreement between Petro Stopping Centers,
L.P. and Quadland Corporation dated August 4, 1997
Exhibit 27-Financial Data Schedule
(b) Reports on Form 8-K
The Registrant filed a Form 8-K report on September 3, 1997 and a Form 8-
K/A report on September 11, 1997, both related to - Item 4. - Changes in
Registrant's Certifying Accountant
16
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PETRO STOPPING CENTERS, L.P.
(Registrant)
Date: November 12, 1997 /s/ Larry J. Zine
-----------------------
Larry J. Zine
Executive Vice President
and Chief Financial Officer
(Principal Financial Officer)
17
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EXHIBIT INDEX
Exhibit No. Exhibit Description
- ----------- -------------------
10 Lease Agreement, dated as of
August 4, 1997, between the Company
and Quadland Corporation.
27 Financial Data Schedule
18
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EXHIBIT 10
LEASE AGREEMENT
Between
QUADLAND CORPORATION, an Ohio corporation
LANDLORD,
and
PETRO STOPPING CENTERS, L.P., a Delaware limited partnership
TENANT
Location of Premises:
12906 Deshler Road
North Baltimore, Ohio
"Buckeye Travel Mall"
<PAGE>
INDEX
-----
Article Page
- ----------------------------------------------------------------
1 Basic Lease Provisions and Exhibits 3
2 Demise and Term 4
3 Improvements 5
4 Rent 6
5 Real Estate Taxes and Assessments 7
6 Landlord's Covenants and Restrictions 8
7 Landlord's Warranties and Representations 8
8 Subordination, Attornment and Non-Disturbance
Agreement; Estoppel Letters 13
9 Force Majeure 14
10 Alterations by Tenant -- Mechanics' Liens 15
11 Repairs by Landlord and Tenant 16
12 Utilities 16
13 Observance of Laws, Regulations, Etc. 16
14 Assignment 17
15 Insurance and Subrogation 18
16 Damage and Destruction 19
17 Condemnation 20
18 Signs 21
19 Default 21
20 Purchase Option 22
21 Miscellaneous Provisions 27
2
<PAGE>
LEASE AGREEMENT
AGREEMENT OF LEASE made effective as of the 4th day of August, 1997 (the
"Effective Date"), by and between QUADLAND CORPORATION, an Ohio corporation,
whose address is 7041 Truck World Blvd., Hubbard, Ohio 44425 (hereinafter
referred to as "Quadland"), EDWARD T. YASECHKO and EDWARD J. YASECHKO
(collectively, "Messrs. Yasechko" and together with Quadland, the "Landlord"),
whose address is c/o Quadland, 7041 Truck World Blvd., Hubbard, Ohio 44425 and
PETRO STOPPING CENTERS, L.P., a Delaware limited partnership, with offices at
6080 Surety Drive, El Paso, Texas 79905 (hereinafter referred to as "Tenant").
W I T N E S S E T H:
That Landlord, in consideration of the rents and covenants herein set forth,
hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises
hereinafter described, upon the following terms and conditions:
ARTICLE 1
BASIC LEASE PROVISIONS AND EXHIBITS
SECTION 1.01 BASIC LEASE PROVISIONS
(A) Name and location of Premises: The Buckeye Travel Mall, located at
12906 Deshler Road, North Baltimore, Ohio, 45872, situated on the real property
described on Exhibit A attached hereto and made a part hereof, together with the
uildings and all other improvements thereon.
(B) Premises: The Premises consist of the real property described on
Exhibit B, containing approximately 50.00 acres of land, more or less (the "Real
Property"), and all improvements and buildings situated thereon, including
without limitation three (3) Buildings,being the Main Building, the Truck Repair
Building, and the Scale Building.
(C) Initial Term: Four (4) years.
(D) Options to extend Term: Four (4) renewal options of five (5) years
each (each a "Renewal Term"), subject to the provisions of Section 2.02 hereof.
(E) Rent: During the Initial Term of this Lease, Rent shall be Five
Hundred Sixty Thousand and No/Dollars ($560,000.00) per year, payable in equal
monthly installments of Forty Six Thousand Six Hundred Sixty Seven and No/100
Dollars ($46,667.00). During each Renewal Term, the Rent payable hereunder
shall adjust as provided in Article 4 hereof.
3
<PAGE>
SECTION 1.02: EXHIBITS
The following Exhibits are attached hereto and made a part hereof:
Exhibit A: Legal description of the Premises.
Exhibit B: Memorandum of Lease and Purchase Option.
Exhibit C: Lender Estoppel and Non-Disturbance
Agreement.
Exhibit D: Permitted Liens, Encumbrances and Restrictions on
the Premises.
Exhibit E: Tenant Improvements.
Exhibit F: List of registered underground storage and other
tanks.
Exhibit G: Permitted Exceptions.
ARTICLE 2
DEMISE AND TERM
SECTION 2.01: PREMISES
(A) Landlord leases to Tenant, and Tenant leases from Landlord, the
Premises, including all of Landlord's right, title and interest in and to the
Real Property, the Buildings, and all other improvements thereon as shown on
Exhibit A, and including the underground storage and other tanks, the related
islands, pumps, dispensers and other equipment (the "USTs") described on Exhibit
F attached hereto and made a part hereof, together with all easements, rights-
of-way, rights of ingress and egress, and appurtenances thereto, and all parking
areas used or useful in connection therewith (collectively, the "Premises").
(B) Upon Tenant paying Rent and performing all of the covenants and
conditions set forth herein, Landlord hereby covenants and agrees that Tenant
will peacefully and quietly have, hold and enjoy the Premises for the term
herein provided.
SECTION 2.02: COMMENCEMENT AND INITIAL TERM DATE. Possession of the Premises
shall be delivered to Tenant on or before August 5, 1997. The Initial Term of
this Lease shall commence on the date Tenant accepts Landlord's tender of
physical possession of the Premises (the "Commencement Date") and shall
terminate four (4) years thereafter.
In the event Tenant attempts but is unable to exercise the Purchase Option
as described in Article 20 hereof (the "Purchase Option" or "Option") or if upon
the tender of an Exercise Notice (as defined in the Purchase Option provisions)
Landlord or Tewel fail or refuse to consummate the closing of the Option,
Landlord hereby grants to Tenant, in addition to the Initial Term, the option to
renew this
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Lease for four (4) additional terms of five (5) years each (each a "Renewal
Term"), subject to and on the same terms and conditions as herein provided. Each
Renewal Term shall be exercised at the election of Tenant by the tender of
written notice of Tenant's intention to extend the this Lease not less than
thirty (30) days prior to the expiration of the Initial Term or the then current
Renewal Term, as applicable.
SECTION 2.03: MEMORANDUM OF LEASE. Each of the parties hereto agrees to
promptly execute and record the Memorandum of Lease and Purchase Option attached
hereto as Exhibit B.
SECTION 2.04: EFFECTIVE DATE. Notwithstanding anything to the contrary
contained herein, including without limitation that the Commencement Date shall
be subsequent to the Effective Date of this Lease, it is the intention of
Landlord and Tenant that this Lease be effective between the parties as of the
Effective Date and that as of such date, that each of Landlord and Tenant have
their respective rights and obligations hereunder.
SECTION 2.05: EQUIPMENT LEASE. Contemporaneously with the execution of this
Lease, Tewel Corporation ("Tewel") and Tenant have entered into that certain
Equipment Lease (the "Equipment Lease") providing for the lease by Landlord and
Tewel to Tenant of all furniture, fixtures, trade fixtures, equipment,
machinery, tools, and other personal property therein described (collectively,
the "Equipment") located on and used in connection with Premises. It is
intended that this Lease be coterminous with the Equipment Lease. Any
termination of this Real Property Lease shall automatically be deemed to effect
a termination of the Equipment Lease.
ARTICLE 3
IMPROVEMENTS
SECTION 3.01: QUALITY OF IMPROVEMENTS. As of the Commencement Date, the
Premises shall include the Real Property, the Buildings and all other
improvements and structures situated on the Real Property.
Landlord hereby represents and warrants to Tenant that as of the
Commencement Date, the Buildings and other improvements are in operating
condition, order and repair, subject to ordinary wear and tear; that the HVAC,
plumbing, electrical, mechanical and other component systems of the Premises and
the Buildings are in operating condition, order and repair and capable of being
used in the business as presently being conducted without present need for
repair or replacement except in the ordinary course of business; that the
Buildings and other improvements have been maintained and repaired in accordance
with reasonable business practices, consistently applied and in accordance with
the terms of all warranties and guarantees; the zoning classification of the
Real Property is such that the Real Property may be used as it was used by
Landlord immediately prior to the Effective Date of this Lease; the Premises do
not, at the Commencement Date, violate in any material respect, any provisions
of
5
<PAGE>
any applicable building code, fire, health or safety regulation, or other
governmental ordinances, orders or regulations, and no condition exists as of
the Commencement Date with respect to the Premises which would prevent, or
require repair or modification thereof as a prerequisite to, Tenant using the
Premises in the ordinary conduct of a full facility truck/auto travel center
business, excluding conditions which require repair and maintenance in the
ordinary course.
SECTION 3.02: TENANT'S IMPROVEMENTS. Tenant hereby represents and covenants
that during the first Lease Year (as hereafter defined) Tenant shall make the
Tenant Improvements described on Exhibit E attached hereto and made a part
hereof. Landlord acknowledges that Tenant contemplates making such Tenant
Improvements and hereby consents thereto and agrees that no further consent or
approval from Landlord is required with respect to the contemplated
modifications and alterations to the Premises. For purposes herein, the term
"Lease Year" shall mean twelve (12) consecutive calendar months, commencing with
the Commencement Date, if the Commencement Date is on the first day of a
calendar month, and if not, the first day of the calendar month immediately
following the Commencement Date, and each anniversary thereof.
ARTICLE 4
RENT
During the Initial Term of this Lease, Tenant shall pay to Landlord at the
address herein provided, the Rent as set out in Section 1.01 (E) above, in equal
monthly installments in advance, commencing on the Commencement Date.
The Rent provided for hereunder shall adjust on the first day of each
Renewal Term (each a "Change Date") to reflect any change in the cost of living
during the previous five (5) year Initial Term or Renewal Term just ended, as
applicable, based upon the Consumer Price Index, All Urban Consumers, U.S. City
Average, all Items, base period 1982-84 (hereinafter referred to as the
"Index"), published by the Bureau of Labor Statistics of the United States
Department of Labor. As to the first Renewal Term, the index number for the
month of the Commencement Date shall be the "Base Index Number" and as to each
subsequent Renewal Term(s) the index number for the first month of the Renewal
Term just completed shall be the "Base Index Number", as the case may be. The
index number on each Change Date shall be the "Current Index Number" for the
Renewal Term which is commencing. The Base Index Number shall be subtracted
from the Current Index Number, and the result obtained shall be converted to a
percentage of the Base Index Number.
The Rent payable during any Renewal Term of this Lease shall then be
increased or decreased by such percentage (the "Adjusted Rent"), as applicable,
effective as of the first day of the applicable Renewal Period, and the Adjusted
Rent for any Renewal Term shall be payable in equal monthly installments, in the
manner provided for under the terms of this Lease. Tenant shall continue payment
of the rental rate in effect for the expiring period until notified in writing
by Landlord
6
<PAGE>
of any change. Landlord shall provide to Tenant written notice of any rental
adjustment, including a memorandum showing the calculations used by Landlord in
determining the new monthly rental. On the first day of the calendar month
immediately succeeding receipt of such notice, Tenant shall commence payment of
the new monthly rental specified in the notice, and shall also pay to Landlord,
with respect to the month(s) already expired, the difference, if any of the
required monthly rentals specified in the notice over the monthly amounts
actually paid by Tenant. If publication of the Index shall be discontinued, the
most comparable index published by any branch or department of the United States
Government shall be substituted, and such adjustments in the method of
computation shall be made as may be necessary to carry out the intent of this
cost-of-living provision. It is the intention of Landlord and Tenant that the
monthly rental shall be adjusted either upward or downward on each Change Date
in the event of an increase or decrease in the Index or an equivalent increase
or decrease in the event of reevaluation or revision of the Index. In the event
that the Adjusted Rent for any Renewal Term is less than the Rent payable for
the preceding Renewal Term, any credit for excess Rent paid by Tenant shall be
applied as an offset against subsequent installments of Rent to come due under
the terms of this Lease.
ARTICLE 5
REAL ESTATE TAXES AND ASSESSMENTS
SECTION 5.01: TENANT'S OBLIGATION.
(A) During the term of this Lease, Tenant agrees to pay, before they
become delinquent, all real estate taxes, special assessments, and other
governmental charges ("Real Estate Taxes") which may be lawfully levied upon or
against the Premises described herein.
(B) Tenant's obligation for Real Estate Taxes shall be equitably adjusted
for any portion of the term of this Lease which does not include an entire tax
year.
(C) Nothing herein contained shall require or be construed to require
Tenant to pay any inheritance, estate, succession, mortgage or transfer tax,
gift, franchise, withholding, income or profit tax, that is or may be imposed
upon Landlord, its successors or assigns, in connection with the operation of
the Premises or otherwise.
(D) Immediately upon receipt of any tax bill, statement or assessment with
respect to the Real Estate Taxes owing in connection with the Premises, Landlord
shall furnish to Tenant such tax bill, statement or assessment. Tenant shall
furnish evidence of the payment of the Real Estate Taxes to Landlord upon the
request therefore from Lessor.
(E) Tenant hereby reserves the right to contest the amount of any Real
Estate Taxes in its name or in the name of Landlord, and Landlord hereby
covenants and agrees to cooperate with Tenant in all respects with regards
thereto, provided, that Tenant provide a surety bond or other security
reasonably satisfactory to Landlord to protect the
7
<PAGE>
Landlord and the Premises from the enforcement of any lien against the Premises
for any such Real Estate Taxes during the period of contest. Landlord and Tenant
agree to cooperate fully with each other in regards to any such tax contest and
in the preparation of all tax returns, renditions or reports.
(F) Should Tenant fail to pay the Real Estate Taxes as provided in this
Article 5, Landlord shall provide Tenant written notice of such failure and
allow Tenant thirty (30) days from receipt of such notice to pay the same,
failing which Landlord, may at its option, pay such Real Estate Taxes, in which
event Tenant shall reimburse Landlord upon demand for the costs thereof,
together with interest at the rate of l2% per annum as additional rent hereunder
from the date of expenditure by Landlord until repayment by Tenant.
ARTICLE 6
LANDLORD'S COVENANTS AND RESTRICTIONS
SECTION 6.01: LANDLORD'S COVENANTS AND RESTRICTIONS. Landlord hereby covenants
and agrees that, during the term hereof, Landlord shall not lease, or permit to
be leased, used or occupied any space within the Premises, including any of the
Buildings or the Real Property; that the lease of the Premises to Tenant is
exclusive of the right of possession of all other parties.
SECTION 6.02: OPERATION OF PREMISES.
Landlord covenants and agrees that the sizes, location and arrangements of
the Buildings, improvements and parking areas (including traffic circulation and
flow patterns) existing as of the Effective Date will not be changed without
Tenant's written consent.
ARTICLE 7
LANDLORD'S WARRANTIES AND REPRESENTATIONS
SECTION 7.01: WARRANTIES AND REPRESENTATIONS. Landlord covenants, warrants,
and represents to Tenant that: (i) Landlord owns the Premises in fee simple,
subject to no encumbrances, liens, restrictions, or easements, except as may be
expressly stated in Exhibit D attached hereto and made a part hereof, and that
as of the Effective Date no person, firm, corporation or other entity has any
right to use, occupy or possess any portion of the Premises, or any option to
acquire an interest therein; (ii) Landlord, and no other person, firm,
corporation or other entity, has full and complete authority to execute this
Lease, without the joinder or approval of any other, and that Landlord is duly
organized and validly existing in accordance with the laws of the state of
organization of Landlord and is authorized to do business in the State of Ohio;
(iii) use of the Premises for a full facility truck/auto travel center is not
prohibited by or in violation of any restrictions contained in any deed, lease,
loan agreement, deed of trust, mortgage or other instrument relating to the
Premises or to which the Premises
8
<PAGE>
are subject; (iv) to the best knowledge of Landlord, the design, construction,
operation, maintenance and use of the Premises, including without limitation the
parking areas, is in compliance with all restrictions applicable thereto, and
all federal, state, and municipal laws, ordinances, rules or regulations,
including without limitation all Environmental Laws (as hereafter defined) and
the Americans with Disabilities Act of 1990, as amended ("Legal Requirements"),
and the number and size of parking spaces provided for the Premises as shown on
Exhibit A are, to the best knowledge of Landlord, sufficient to satisfy all
Legal Requirements; (v) that utility services and adequate storm sewer and
sanitary sewer facilities are lawfully available to the Premises; (vi) Tenant
may peacefully and quietly hold, occupy and enjoy the Premises and the
appurtenances thereto throughout the term of this Lease, and Landlord shall do
all things necessary to defend such right of Tenant; (vii) Landlord will pay all
real estate commissions, consulting fees and other charges due with respect to
this Lease, and Landlord agrees to defend, indemnify and hold Tenant harmless
from and against any and all costs, expense or liability for any damages
(including attorneys' fees and expenses), compensation, commissions and charges
claimed with respect to this Lease or the negotiation thereof; (viii) there is
legal access to the Premises through publicly dedicated roadways or rights-of-
way and to Landlord's knowledge there is no fact or condition existing which
would result or could result in the termination or reduction of the current
access to and from the Premises to existing highways and roads; (ix) all
licenses and permits necessary to operate the Premises as the Buckeye Travel
Mall are in place and in full force and effect, no violations are or have been
reported in respect thereto and there is not pending or threatened any
proceeding looking towards the revocation or limitation of any such licenses or
permits; and (x) there are no special assessments or contemplated improvements
which would result in a special assessment affecting the Premises, and all ad
valorem real property and personal property taxes, together with any penalties
and interest due thereon have been paid in full through the Effective Date; and
(xi) to the knowledge of Landlord there are no legal proceedings of any type or
nature (including condemnation) pending or threatened against the Premises which
would adversely affect the Premises or the use thereof by Tenant for the
purposes intended.
SECTION 7.02: ENVIRONMENTAL MATTERS. Landlord covenants, represents and
warrants to Tenant that (i) the Premises, including specifically each of the
Buildings, are free of asbestos, polychlorinated biphonyls ("PCBs"), petroleum
and petroleum-based derivatives, urea formaldehyde and all other Hazardous
Materials (as hereafter defined); (ii) neither the Premises nor the Landlord are
currently in violation of or, subject to any existing, pending or, to the best
knowledge of Landlord, threatened, lawsuits, administrative actions,
investigations or inquiries by any governmental authority or any other person,
or to any remedial obligations arising out of the handling, treatment, storage,
transportation, disposal or the discharge into the environment of any Hazardous
Materials; (iii) there are no pending or, to the best knowledge of Landlord,
threatened, enforcement actions or no plans or documents, including, but not
limited to, contingency plans, closure and post-closure plans which impose
environmental obligations and no requirements whether by regulation, agreement
or otherwise legally
9
<PAGE>
binding, imposing financial or other obligations with respect to environmental
conditions or activities on or about the Premises; (iv) Landlord has no
knowledge of any past or present spill, discharge or other release of Hazardous
Materials onto or from the Premises, no Hazardous Materials Violation (as
hereafter defined) exists with respect to the Premises and neither Landlord nor
the Premises are in violation of any Environmental Law; (v) no building
materials used to construct the Buildings and the other improvements on the
Premises contain any asbestos, or other Hazardous Materials; (vi) currently the
underground storage or other tanks (the USTs) listed on Exhibit F attached
hereto and made a part hereof are located in, about and under the Premises; each
of the USTs have been and currently are being operated in strict compliance with
Environmental Laws, have been maintained in a first class manner, consistent
with prudent business practices and, to the best knowledge of Landlord, are in
accordance with all Environmental Laws, have satisfactory tank tightness
evaluations based upon the assessment done on or about July 1, 1997 and do not
leak and have been modified, upgraded and replaced as required under the
standards to become applicable to USTs as of calendar year 1998 under applicable
Environmental Laws; and (vii) the soil and groundwater in, around, and
surrounding the Premises does not contain any pollutants or contaminants
associated with the presence of or releases from any underground tanks.
Landlord and Tenant acknowledge that Tenant is in the process of completing
a Phase II Environmental Site Assessment of the Premises, the results of which
will not be known until subsequent to the Effective Date of this Lease. If as a
result of the Phase II Environmental Site Assessment Tenant determines that any
condition, event, circumstance, activity, practice, incident, action or plan
relating to the Premises existed or occurred on or prior to the Effective Date
which under applicable Environmental Laws requires reclamation, removal or
remediation, or which were in noncompliance with applicable Environmental Laws
at or prior to the Effective Date, Landlord shall be liable for such conditions
and events and for the remediation and reclamation necessary in connection
therewith, and in such event Tenant and Landlord shall consult as to the
appropriate course of action and seek to agree upon the same within thirty (30)
days following receipt by Tenant of the completed Phase II Environmental Site
Assessment, provided however, in the event Landlord and Tenant are unable to
agree as to the course of action as to any remediation or reclamation, Landlord
hereby agrees that (1) Tenant shall be entitled to (i) undertake or cause to be
undertaken all removal, remediation and reclamation thereof required, in the
judgment of Tenant, under applicable Environmental Laws, such removal,
remediation and reclamation to be pursuant to a plan therefor as Tenant shall
determine to be appropriate, and (ii) undertake or cause to be undertaken all
such action as shall be required under applicable Environmental Laws, in the
judgment of Tenant, to achieve compliance with all applicable Environmental
Laws, and (2) Landlord shall be liable for all costs and expenses incurred by
Tenant in connection with such removal, remediation, reclamation and compliance
activities and Landlord shall jointly and severally indemnify and hold Tenant
and harmless from any and all losses, damages, claims, liabilities, causes of
action, costs and expenses, including attorney's fees, directly or
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indirectly resulting from, or relating to or arising out of the existence of any
such condition, event, circumstance, activity, practice, incident, action or
plan. The rights of Tenant under this Section 7.02 are in addition to and
without waiver of any other right or remedy Tenant may otherwise have under this
Lease or otherwise at law or in equity, and all such rights and remedies shall
be cumulative and not in lieu of one another.
For purposes of this Lease, the following terms shall have the following
meanings:
(i) "Environmental Law" shall mean any federal, state or local
statute, law, ordinance, code, rule, regulation, order, policy,
decree or common law, enacted, promulgated or in effect on the
date hereof (as hereinafter amended from time to time) or
hereafter enacted or imposed, pertaining to health, safety, use
or possession of Hazardous Materials (as herein defined), or
environmental protection, restoration or reclamation, including,
but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. (S)
9601, et seq.; the Hazardous Materials Transportation Act, as
------
amended, 49 U.S.C. (S) 1801, et seq. the Resource Conservation
------
and Recovery Act of 1976, as amended, 42 U.S.C. (S) 6901, et @.,;
the Federal Water Pollution Control Act, as amended, 33 U.S.C.
(S) 1201, et seq.; the Safe Drinking Water Act, 42 U.S.C. (S)
-- ---
3808, et seq.; the Toxic Substances Control Act, as amended, 15
U.S.C. (S) 2601, et seq.; the Clean Air Act, as amended, 42
-- ---
U.S.C. (S) 7401, et seq.; any statute, law, ordinance, code,
-- ---
rule, regulation, order, policy, decree or common law of the
State of Ohio constituting a "Environmental Law" as defined
above.
(ii) "Hazardous Materials" shall mean any substance which at any time
shall be listed as or meet the criteria of a "hazardous waste",
"hazardous substance", "hazardous material", "pollutant",
"contaminant", "toxic material", "toxic pollutant" or "toxic
substance," or words of similar import, in any Environmental Law.
The term "Hazardous Materials" shall also include, without
limitation, (a) petroleum or petroleum products and fractions
thereof, natural gas or natural gas products, radioactive
materials, asbestos or asbestos containing materials in any form,
urea formaldehyde foam insulation, radon gas and polychlorinated
biphenyls ("PCBs") and transformers or other equipment that
contain dielectric fluid containing PCBs; (b) any flammable,
combustible, explosive, infectious, corrosive, reactive, caustic,
irritant, carcinogenic, mutagenic or teratogenic substances or
materials; or (c) any other chemical, material, waste or
substance which is nay way regulated by any federal, state or
local government authority, agency or instrumentality,
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including mixtures thereof with other materials, and including
any regulated building materials such as asbestos and lead.
(iii) "Hazardous Materials Contamination" shall mean the presence of
one or more Hazardous Materials on the Premises which is not
allowed by the Environmental Laws or which is not in compliance
with the Environmental Laws, or any pollution, contamination,
degradation, damage, impact or injury to the Environment, the
Premises or the improvements thereon.
Except as provided below and as to any Hazardous Material, Hazardous Materials
Contamination or violations of Environmental Laws arising or existing prior to
the Effective Date of this Lease, Tenant shall indemnify, defend and save
harmless Landlord, the Landlord, its officers, directors, successors and assigns
(collectively, the "Landlord Parties") from and against any suits, actions,
legal or administrative proceedings, demands, claims, liabilities, fees, fines,
penalties, losses, injuries, damages, expenses or costs, including remediation
expenses, interest and attorneys' and consultants' fees (collectively, the
"Claims"), incurred or suffered by the Landlord Parties or any of them (i) that
arise out of any violation of an Environmental Law by Tenant from and after the
Commencement Date of the term of this Lease, the presence of any Hazardous
Materials on the Premises which originates from and after the Commencement Date
of the term of this Lease as a result of the operation of the Premises by
Tenant, or any Hazardous Materials Contamination on the Premises which
originates from and after the Commencement Date of the term of this Lease as a
result of the operation of the Premises by Tenant. This indemnification shall
survive termination or expiration of this Lease, and shall be effective
regardless of when the claims are made or by whomever asserted.
(e) Landlord shall indemnify, defend and hold harmless Tenant, the Tenant's
officers, directors, partners, successors and assigns (collectively, the "Tenant
Parties") from and against any suits, actions, legal or administrative
proceedings, demands, claims, liabilities, fees, fines, penalties, losses,
injuries, damages, expenses or costs, including remediation expenses, interest
and attorneys' and consultants' fees (collectively, the "Claims"), incurred or
suffered by the Tenant Parties or any of them (1) for any violation of any
Environmental Law, the presence of any Hazardous Materials or any Hazardous
Materials Contamination on, in, or about the Premises existing prior to the
Effective Date or arising because of the existence of any such condition prior
to the Effective Date, or (ii) that otherwise arises from the breach by Landlord
or any Landlord Parties, or any of them, of any representation, warranty or
covenant in this Section 7.02 This indemnification shall survive termination or
expiration of this Lease, and shall be effective regardless of when the claims
are made or by whomever asserted.
It is expressly understood and agreed that in the event any Tenant Party
suffers any Claims arising under this Section 7.02, Tenant shall have the right
to offset such Claims against installments of Rent to be
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paid hereunder as the same come due and/or against the Option Price (as
hereafter defined in Article 20). Tenant's willingness to accept possession of
the Premises and commence the term of this Lease without completion of and
receipt of the results of the Phase II Environmental Site Assessment shall in no
way be deemed to render any representation or warranty of Landlord made in this
Lease to be qualified or subject to the results of the Phase II Environmental
Site Assessment report in any manner whatsoever.
(f) The indemnities of Tenant and Landlord set forth above are intended to
be supplemental to, and without affect on the indemnities set forth in the
Agreement among Landlord, Tewel Corporation, the shareholders of each thereof,
and Tenant, dated August ____, 1997 (the "Acquisition Agreement"), providing
for, among other things, the execution and delivery of this Lease.
SECTION 7.03: TITLE VERIFICATION. Prior to execution of this Lease, Landlord
agrees to furnish to Tenant a copy of a Commitment for Title Insurance covering
the Premises, dated no more than 30 days prior to the date of delivery and
issued by a title insurance company authorized to do business in the state in
which the Premises are located.
SECTION 7.04: VIOLATION OF LANDLORD'S REPRESENTATIONS AND WARRANTIES. If there
shall be a material violation of any covenant, representation or warranty set
forth in the Acquisition Agreement or in Sections 7.01 or 7.02 or of Landlord's
obligations under Section 7.03, Tenant may refuse to accept Landlord's tender of
possession of the Premises, or, in the event Tenant has accepted Landlord's
tender of acceptance, Tenant may abate all Rent until the violation is cured,
and provided, further, that in the event the violation is not cured within sixty
(60) days after Tenant's notice to Landlord of the violation, Tenant at any time
thereafter may cancel this Lease without liability therefor, or Tenant, at it
sole election, may elect to cure or correct any defect rendering Landlord's
representation or warranty inaccurate or cure any breach thereof and offset the
costs and expenses incurred in connection with such curative action against
installments of Rent to come due hereunder or against the Option Price.
ARTICLE 8
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
AGREEMENT, ESTOPPEL LETTERS
SECTION 8.01: SUBORDINATION. This Lease, and the lien thereof, shall not be
subordinated to the lien of any ground lease or mortgage or deed of trust
(irrespective of the execution or recordation date thereof), placed upon the
Premises unless the Landlord shall first cause the ground lessor or mortgagee or
beneficiary to execute a Subordination, Attornment and Non-Disturbance Agreement
in the form of Exhibit C attached hereto and made a part hereof.
SECTION 8.02: ATTORNMENT. In the event of (i) a transfer of Landlord's
interest in the Premises or (ii) any proceeding brought for the termination or
foreclosure of, or the exercise of the power of sale
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under any mortgage or deed of trust affecting the Premises or any ground or
underlying lease made by Landlord, then and in any of such events, Tenant shall
attorn to and recognize the purchaser or the transferee of Landlord's interest
as Landlord under this Lease for the balance then remaining of the Lease term,
or any extension thereof, providing said purchaser or transferee shall agree to
accept such attornment and to undertake and be bound by all of the terms and
conditions of this Lease and such purchaser or transferee first shall execute a
the form of Subordination, Attornment and Non-Disturbance Agreement attached
hereto and made a part hereof as Exhibit C.
SECTION 8.03: PRE-EXISTING MORTGAGE. Upon the execution of this Lease, if
there is a ground lease and/or deed of trust superior to this Lease, it shall be
a condition precedent to the Commencement Date that Landlord shall deliver to
Tenant the Subordination, Attornment and Non-Disturbance Agreement attached
hereto and made a part hereof as Exhibit C, executed by said ground lessor
and/or beneficiary. Until Landlord furnishes such executed Agreement, all Rent
and other charges required hereunder shall abate.
SECTION 8.04: TENANT'S ESTOPPEL LETTER. Tenant agrees that, within thirty (30)
days after written request by Landlord from time to time, Tenant will provide to
Landlord, or its mortgagee, beneficiary or purchaser, providing it is at no cost
to Tenant, an estoppel letter certifying to the best of Tenant's knowledge
whether this Lease is in full force and effect, that this Lease has not been
amended or modified except as noted in the letter, the amount of annual rent
paid and the date to which rents have been paid.
SECTION 8.05: LANDLORD'S ESTOPPEL LETTER. Landlord agrees that, within thirty
(30) days of Tenant's written request from time to time, Landlord will provide
to Tenant, providing that it is at no cost to Landlord, an estoppel letter
certifying to the best of Landlord's knowledge, whether this Lease is in full
force and effect, whether this Lease has been amended or modified, the amount of
annual rent paid by Tenant and the date to which rents have been paid.
ARTICLE 9
FORCE MAJEURE
If Landlord or Tenant shall, as a result of any force majeure, fail to
timely perform any obligation to be performed under this Lease, then such
failure shall be excused and shall not be deemed to be a breach of this Lease by
the party in question, and the time allotted said party to so perform its
obligation shall be extended by a period equal to the time such delay continues.
The affected party's performance shall be diligently commenced and carried to
completion when the force majeure ends. As used herein, force majeure shall
mean strikes, lockouts or labor disputes, inability to obtain labor or materials
(or reasonable substitutes therefor) or acts of God, enemy or hostile
governmental action, civil commotion, or fire or other similar casualty or
cause.
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ARTICLE 10
ALTERATIONS BY TENANT -- MECHANICS' LIENS
SECTION 10.01: ALTERATIONS. Tenant shall have the right to make any and all
repairs and alterations to the Premises, including without limitation the Tenant
Improvements described in Exhibit E; provided, however, that Tenant shall not
make any other alterations which affect the structural integrity of the Premises
without obtaining Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed.
SECTION 10.02: TENANT'S WORK. Any alterations made by Tenant pursuant to
Section 10.01 shall be done at Tenant's sole cost and expense, and performed in
a workmanlike manner. Tenant shall comply with all laws, regulations and
ordinances applicable to the performance of the work. Landlord and Tenant agree
that Tenant shall not have any obligation at the end of the term hereof to
remove the alterations nor to restore the Premises to its original condition;
provided however, that Tenant shall at all times retain title to any
improvements, alterations or improvements made to the Premises which are in the
nature of Tenant's trade fixtures, personal property and equipment, and upon the
expiration of the Lease term, Tenant shall be entitled to remove the same from
the Premises, provided that Tenant leave the Premises generally, in working
condition, and repair any damage occasioned by the removal of such improvements,
alterations, trade fixtures, personal property and equipment of Tenant, ordinary
wear and tear and damage by casualty or condemnation excepted.
SECTION 10.03: LANDLORD'S ALTERATIONS. Landlord agrees that it will make no
changes, alterations or additions to the Premises, including the Building and
improvements thereon, nor take any action which reduces the parking areas or
which alters in any way the access to such parking areas or to the Premises from
that which exists as of the Effective Date, without the prior written consent of
Tenant.
SECTION 10.04: MECHANIC'S LIENS. Tenant will pay or cause to be paid all
charges for all of Tenant's Work and for all other work done by Tenant on or
about the Premises during the term of this Lease and will not suffer or permit
any mechanic's, materialmen's, or similar liens for labor and materials
furnished to the Premises during the term of the Lease by or on the account of
Tenant. If any such lien shall be filed, Tenant will either pay the same or
procure the discharge thereof by giving security or in such other manner as may
be required or permitted by applicable law within thirty (30) days of the filing
thereof. Notwithstanding the foregoing, Tenant shall have the right, at its
sole cost and expense, in its name or in the name of the Landlord, or both, to
contest any such lien, provided the Tenant shall provide a bond or other
security sufficient to protect Landlord's interest in the Premises. Tenant
shall indemnify Landlord against, and save Landlord harmless from any and all
losses, damages, claims, liabilities, judgments, interests, costs, expenses, and
attorneys' fees arising out of the filing of any such lien. Nothing herein
contained, however, shall be deemed to require Tenant to pay or discharge any
liens or mortgages of any nature or character which may be placed upon
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the Premises by the affirmative act or omission of Landlord or any contractor of
Landlord, or any other third party unrelated to and not performing services for
Tenant.
ARTICLE 11
MAINTENANCE AND REPAIR OBLIGATIONS
Tenant agrees that during the term of this Lease Tenant will keep and
maintain in good order, condition and repair the interior and exterior of the
Premises, but in all cases excluding ordinary wear and tear and damage by fire,
the elements, casualty or condemnation.
ARTICLE 12
UTILITIES
SECTION 12.01: ELECTRICITY, GAS, WATER AND SEWER. Electricity, gas, water and
sewer will be available to the Premises and shall be metered in Tenant's name.
Tenant will make all utility payments directly to the public utility company
based upon Tenant's metered usage.
SECTION 12.02: INTERRUPTION OF UTILITY SERVICE. Landlord shall not be liable
in the event utility service to the Premises is interrupted by fire, riot,
accident, strikes or any other similar cause beyond Landlord's control, except
as may be occasioned by Landlord's negligence, bad faith and willful misconduct,
and Landlord agrees to cooperate in the prompt restoration of any such
interrupted service.
ARTICLE 13
OBSERVANCE OF LAWS, REGULATIONS, ETC.
SECTION 13.01: TENANT'S OBLIGATIONS. Tenant agrees to observe and comply, at
its sole cost and expense, with all laws, regulations and ordinances of all
governmental authorities now or hereafter in force applicable to the conduct of
its operations upon the Premises, but Landlord agrees that, at its sole cost and
expense, it will make any and all necessary structural repairs, structural
alterations, structural additions and structural replacements, or requiring
excavation, which may be required to achieve such compliance.
SECTION 13.02: LANDLORD'S OBLIGATION. Except for Tenant's obligations under
Section 13.01, Landlord agrees to observe and comply, at its sole cost and
expense, with all laws, regulations and ordinances of all governmental
authorities now or hereafter in force relating to the Premises and this Lease.
Specifically, and without limiting the generality of the foregoing, Landlord
hereby covenants and agrees to make all applications, filings and renewal
requests as may be necessary to maintain the USTs in compliance with all
applicable laws, including Environmental Laws, provided however that Tenant
shall pay or reimburse to Landlord any filing or license renewal fee in
connection therewith.
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ARTICLE 14
ASSIGNMENT
SECTION 14.01: RELATED PARTY: SALE OF BUSINESS. Tenant shall have the
absolute right to assign Tenant's interest under the Lease, in whole or in part,
or sublease any interest in and to the Premises, provided: (i) Tenant shall not
then be in default in the performance and observance of the terms and provisions
of this Lease, and (ii) such transferee shall assume all of the obligations of
this Lease on the part of Tenant to be performed.
SECTION 14.02: RELEASE OF LIABILITY. Should Tenant make an assignment or enter
into a sublease in accordance with the provisions of Section 14.01 above, Tenant
shall not be released from any and all liability under this Lease, without
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed.
SECTION 14.03: LEASEHOLD MORTGAGES. Tenant may execute and deliver one or more
mortgages, deeds of trust or other leasehold security agreements ("Leasehold
Mortgages") without consent of Landlord, in favor of any lender to Tenant (a
"Leasehold Lender"). Landlord agrees to provide to any such Leasehold Lender
notice of an event of default hereunder and provide such Leasehold Lender the
same opportunity to cure such default as Tenant is herein provided. Upon
request, Landlord agrees to acknowledge its consent to such Leasehold Mortgage
in writing to such Leasehold Lender. Further, Landlord hereby agrees to
subordinate in favor of any such Leasehold Lender, all liens and security
interests it may have in any of Tenant's trade fixtures, equipment or personal
property located within the Premises, and in connection therewith, upon request,
to execute a subordination agreement with regards thereto, in such form as may
be reasonably acceptable to Landlord and Lender.
ARTICLE 15
INSURANCE AND SUBROGATION
(a) During the term of this Lease, Tenant hereby covenants and
agrees, at its sole expense, to keep the Premises fully insured against damage
caused by fire and other risks and to maintain liability insurance with respect
to the operation of its business in the Premises in such amounts, with such
insurers and with such coverages as are consistent with the coverages maintained
by Tenant in the operation of Tenant's business and other truck stop facilities.
Tenant may maintain any insurance coverages required by the terms of this Lease
under a blanket policy covering other assets of Lessee.
(b) During the term of this Lease, Tenant agrees that upon request
from Landlord that Tenant will furnish to Landlord copies of the policies or
certificates of insurance described in subparagraph (a) above, and with respect
to each renewal thereof, evidencing the payment of the premiums due in
connection therewith.
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(c) Each fire and liability insurance policy obtained and maintained
by either Landlord or Tenant with respect to the Premises shall contain
appropriate clauses pursuant to which the insurance companies issuing such
policies (i) waive all rights of subrogation against Landlord and Tenant, as
applicable, with respect to losses payable under such policies and/or (ii) agree
that such policies shall not be invalidated because the insured has hereby
waived any and all right of recovery against Tenant for losses covered by such
policies.
(d) Landlord hereby waives any and all rights of recovery which it
might otherwise have against Tenant, its directors, officers, partners,
servants, agents, or employees, for any loss, injury, or damage to the extent
the same could be covered by Landlord's insurance, notwithstanding that such
loss, injury, or damage may result from the negligence or fault of Tenant, its
directors, officers, partners, servants, agents or employees. Tenant hereby
waives any and all right of recovery which it might otherwise have against
Landlord, its partners, officers, servants, agents, or employees, for any loss,
injury, or damage to the extent the same could be covered by insurance,
notwithstanding that such loss, injury or damage may result from the negligence
or fault of Landlord, its partners, officers, servants, agents, or employees.
(e) Landlord hereby covenants and agrees during the term of this
Lease to carry and maintain commercial general liability insurance, including
contractual indemnification coverage, in an amount of not less than One Million
Dollars ($1,000,000.00) per occurrence, combined single limit, for injury and
loss of life and property damage, which commercial general liability coverage
shall cover any and all occurrences arising prior to the Effective Date of this
Lease, regardless of when the claims with regards to such occurrences are
asserted. Landlord shall, upon request of Tenant, provide Tenant evidence of
such insurance and of the payment of the premiums therefore.
ARTICLE 16
DAMAGE AND DESTRUCTION
SECTION 16.01: DAMAGE TO PREMISES
(A) In the event, at any time after the execution of this Lease, the
Premises or any part thereof shall be damaged or destroyed by fire, riot, war,
explosion, the elements or any other cause or casualty, then, except as provided
in subparagraph (B) below, this Lease shall continue in full force and effect
and Landlord, at its sole cost and expense, shall promptly commence and
diligently pursue the restoration of the same to its condition existing prior to
the damage or destruction without consideration for wear and tear.
(B) If any such damage or destruction shall occur during the last year of
the term hereof, or in the event the repair and rebuilding of the Premises, the
Buildings and the improvements cannot be reasonably completed within sixty (60)
days, then Tenant shall have the option to
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terminate this Lease as of the date of the casualty, by tendering written notice
of such election to Landlord within thirty (30) days following such casualty. If
at any time during the term of this Lease Tenant's improvements and fixtures are
damaged to the extent of more than one-third (1/3) of the replacement cost of
all of Tenant's fixtures, Tenant shall have the right in addition to its other
rights and remedies to terminate this Lease upon tendering written notice of
such election to Landlord within thirty (30) days from the date of such damage.
Rent and other charges shall be prorated, as of the termination date.
In the event Tenant does not elect to terminate this Lease as provided
herein, Landlord shall repair and restore the Premises as herein required.
SECTION 16.02: RESTORATION WORK. All restoration work required to be performed
by Landlord under this Article 16 shall be done by a contractor acceptable to
Landlord and Tenant, and shall be done in a first class manner, using only new
materials, and in accordance with all applicable laws. Landlord shall submit to
Tenant the plans and the timetable for completion of the restoration work within
thirty (30) days of the date of the damage, casualty or destruction, and Tenant
shall have thirty (30) days within which to approve or make modifications to the
same. Landlord shall commence such restoration work within fifteen (15) days
following the approval by Tenant and thereafter shall diligently pursue such
restoration work to completion. Notwithstanding anything to the contrary
herein, in the event Landlord fails to complete the restoration work in
accordance with the agreed upon plans and construction timetable, Tenant may
upon written notice to Landlord terminate this Lease, effective as of the date
of such casualty, destruction or damage, in which event the Rent and other
charges hereunder shall be prorated as of the date of such casualty, destruction
or damage.
ARTICLE 17
CONDEMNATION
SECTION 17.01: ENTIRE OR PARTIAL TAKING OF THE PREMISES. Should the entire
Premises be taken by any public authority by the exercise of any right of
eminent domain or in condemnation proceedings, or by transfer under a reasonable
threat of condemnation, the term hereof shall cease and terminate as of the
earlier of the date when possession is taken by or title vests in the condemning
authority ("Taking Date"). Except as provided in Section 17.02, should only a
part of the Premises be taken by or transferred to any public authority, then
the term hereof shall cease and terminate only as to the part taken on the
Taking Date. Rent, and any other charges due hereunder, shall be paid only to
the Taking Date. In the event of a partial taking or transfer, a pro rata
abatement of rent and any other charges due hereunder shall be effected as of
the Taking Date for the balance of the term of the Lease.
SECTION 17.02: PARTIAL TAKING AND TERMINATION. In the event of a partial
taking or transfer, as provided in Section 17.01, if: (i) the
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remaining portion of the Premises is of such reduced shape or area as to, in
Tenant's sole opinion, restrict the use, possession or operation of the
Premises; or (ii) the part taken or transferred represents more than twenty-five
percent (25%) of the gross leasable area of the Premises; or (iii) the part
taken or transferred includes the whole or part of the parking area so as to
reduce the area for parking below the greater of either the ratio of five and
five tenths (5.5) parking spaces for each one thousand (1,000) square feet of
gross leasable area or the ratio required by law, and Landlord is unable, within
thirty (30) days of the Taking Date, to substitute an area equally reasonably
accessible to the Premises to increase the parking area to comply with said
ratios, then, and in any of such events, Tenant reserves the right to terminate
this Lease, at Tenant's sole and reasonable discretion, without liability
therefor, at any time after the Taking Date, by thirty (30) days written notice
to Landlord, and upon such termination date, this Lease shall cease and
terminate.
SECTION 17.03: PARTIAL TAKING -- NO TERMINATION. If this Lease is not
terminated by Tenant pursuant to Section 17.02, it shall continue in force as to
the remaining portion of the Premises. Commencing on the Taking Date and
continuing for the remainder of the term of this Lease, or for the duration of
the taking or transfer, if less than the entire remaining term, Rent shall abate
and all other charges shall be reduced in proportion to the area of the Premises
so taken. Landlord agrees to promptly commence and thereafter diligently pursue
repairs, restoration and all improvements necessary to make the remaining
portion of the Premises constitute a complete architectural unit containing like
facilities as previously furnished. Should Landlord fail for any reason
whatsoever, within or beyond Landlord's control (including any force majeure) to
diligently pursue and to complete said repairs, restoration and all other
improvements as herein stated on or before one hundred eighty (180) days
subsequent to the Taking Date, then Tenant shall have the right at any time to
cancel this Lease upon ten (10) days written notice to Landlord.
SECTION 17.04: LANDLORD'S AND TENANT'S AWARD. Tenant shall be entitled to
submit a claim for and to receive an allowance or award for loss of business or
depreciation to, damage to or cost of removal of, or for value of trade
fixtures, leasehold improvements, furniture and other personal property
belonging to Tenant, and any other loss, damage, or claim allowed by law.
ARTICLE 18
SIGNS
Tenant hereby is granted the right, in conformity with the requirements of
applicable law, to erect such signs in, on, or about the Premises as Tenant may
desire. Landlord, upon request, agrees to execute any necessary consents or
applications which may be required by law to permit the erection of signs.
Tenant may remove, replace, or alter all sign(s) at any time and from time to
time, provided that Tenant shall repair any material damage resulting therefrom.
20
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ARTICLE 19
DEFAULT
SECTION 19.01: TENANT'S DEFAULTS. Tenant shall be deemed to be in default
hereunder if: (i) Tenant fails to pay the Rent or other charges on or before
the date on which the same become due and payable to Landlord under and in
accordance with the terms of this Lease, and such failure continues for fifteen
(15) days after written notice from Landlord thereof; or (ii) Tenant fails to
perform or observe any other term or condition contained in this Lease within
thirty (30) days after written notice from Landlord thereof. In any of such
events, Landlord may, immediately or at any time thereafter, and without demand
or notice, enter into and upon the Premises, or any part thereof, and repossess
the same, and expel Tenant and those claiming through or under Tenant and remove
Tenant's effects, all without force or breach of the peace, and without
prejudice to any remedies which might otherwise be permitted for default under
this Lease, and upon entry as aforesaid, Landlord may either (a) terminate this
Lease in which event Landlord shall be entitled to recover from Tenant the
unpaid rent which has been earned at the time of termination, plus the amount by
which the unpaid rent which would have been earned for the balance of the term
exceeds the amount such rental loss that the Lessee proves could have been
reasonably avoided, plus any other amount necessary to compensate Landlord for
all the determent approximately caused by Tenant's failure to perform its
obligations under this Lease; or (b) without terminating this Lease, make such
alterations and relet the Premises or any part thereof for such term or terms
and at such rental or rentals and upon such other terms and conditions as
Landlord in its sole discretion my deem advisable, and all rentals received by
Landlord from such reletting shall be applied to the payment of any indebtedness
other than rent due hereunder from Tenant to Landlord, second, to the payment of
any cost or expense of such reletting, and third, to the payment of rent due and
unpaid hereunder, and being understood that if such rentals received from such
reletting during any month be less than that to be paid during that month by
Tenant hereunder, Tenant shall pay any such deficiency to Landlord, the same
calculated and paid monthly notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such prior material default or breach.
SECTION 19.02: LANDLORD'S DEFAULT. In the event Landlord fails to perform or
observe any term or condition contained in this Lease or the Equipment Lease
within thirty (30) days after notice from Tenant, or in such time as may be
otherwise provided herein, Tenant may but shall not obligated to (a) cancel this
Lease upon written notice to Landlord, (b) take any action appropriate under the
circumstances to preserve its possession and rights under this Lease, (c)
perform any obligation or duty of the Landlord which the Landlord refuses or
neglects to perform, and in any such event, Tenant may notify Landlord of the
cost and expense thereof in which event Landlord shall, upon demand, immediately
reimburse Tenant for said cost and expense, and in the event Landlord fails to
reimburse Tenant within fifteen (15) days of the demand therefore, Tenant shall
be entitled to offset such amounts against future installments of Rent as the
same become due or against the
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Option Price, if applicable, and at Tenant's option, and/or (d) pursue any other
remedy available at law or in equity.
SECTION 19.03: CURE OR STAY OF DEFAULT
(A) In the event the default of Landlord or Tenant cannot be cured within
the grace periods provided in Section 19.01 or 19.02, such default shall be
deemed to have been cured if the defaulting party shall have commenced
compliance within such grace period, and continues to prosecute the same with
due diligence.
(B) In the event either party, at any time prior to termination of this
Lease institutes appropriate legal proceedings to contest the alleged default,
then the effect of any notice of default provided under Section 19.01 shall be
stayed during the pendency of the legal proceeding and no termination shall
occur nor may any other rights or remedies be exercised in reliance upon or as a
result of such notice, until such time as (i) a final, unappealable order, award
or judgment is entered in favor of Landlord and (ii) Tenant has been granted
thirty (30) days opportunity to cure the default, subject to Section 19.03(A),
subsequent to the date of entry of such final order, award or judgment.
ARTICLE 20
PURCHASE OPTION
In consideration of the Rent to be paid during the term of this Lease by
Tenant to Landlord, Tenant is hereby granted the exclusive option to purchase
the Premises from Landlord and the Equipment (as defined in the Equipment Lease)
from Tewel (the Premises and the Equipment being herein referred to collectively
as the "Property") on the terms and conditions set forth below.
a. Grant of Purchase Option. Landlord and Tewel, for themselves, and
------------------------
their respective successors and assigns, do hereby grant unto Tenant the
exclusive option to purchase the Property on the terms and conditions set forth
herein (the "Option").
b. Term of Purchase Option. The Option may be exercised at any time
-----------------------
during the term of this Lease by Tenant tendering written notice (the "Exercise
Notice") to Landlord and Tewel. Notwithstanding the foregoing, in the event
Tenant has not exercised the Purchase Option prior to six (6) months from the
expiration of the term (either the Initial or any Renewal Term of this Lease),
then the exercise of the Option will be subject to Tenant providing written
notice of the desire to exercise the Option and Landlord and Tewel accepting the
same, such acceptance to not be unreasonably withheld or delayed.
Closing of the sale under the Option shall occur within ninety (90) days
after the date of such Exercise Notice, at the offices of Firelands Abstract &
Title Company, 201 Madison Street, Suite 2-A, Port Clinton, Ohio, 43452 (the
"Title Company").
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c. Inability to Exercise Option. In the event Tenant shall attempt but
----------------------------
be unable to effectuate the tender of the Exercise Notice to Landlord and Tewel,
or after having tendered the Exercise Notice thereafter be precluded from
consummating the closing of the Option, or in the event of the failure or
refusal of Landlord or Tewel to close under the terms of the Option, Tenant, at
its election and notwithstanding that less than thirty (30) days may remain
prior to the expiration of the Initial Term or any Renewal Term hereof, may
elect by written notice to Landlord and Tewel to treat the Exercise Notice as
notice of Tenant's election to exercise its option to renew and extend the terms
of this Lease and the Equipment Lease in accordance with Section 2.02 hereof and
Section 2 of the Equipment Lease. Neither Tenant's right to such election or
Tenant's election, if made, shall constitute or be deemed an election of
remedies or a waiver by Tenant of its rights and remedies otherwise available to
Tenant under law or in equity, all such rights and remedies and election being
cumulative of each other.
In the event that the inability of Tenant to exercise the Option results in
the exercise of a Renewal Term, as contemplated in this subparagraph c, and
thereafter should the condition or impediment which precluded the consummation
of the Option be cured, satisfied, corrected and eliminated, Tenant shall
proceed with closing under the Option within ninety (90) days after condition or
impediment has been cured or satisfied.
c. Purchase Price. Should Tenant elect to exercise its Option, the
--------------
purchase price for the Property (the "Option Price") shall be as follow:
(i) In the event the Option is exercised during the first Lease
Year the Option Price shall be the amount of Five Million Six Hundred
Thousand and No/100 Dollars ($5,600,000.00), plus the Rent for the first
Lease Year, prorated from the date of closing under the Option to the last
day of the first Lease Year, subject to adjustment as provided below.
(ii) In the event the Option is exercised during Lease Years two (2)
through four (4), the Option Price shall be the amount of Five Million Six
Hundred Thousand and No/100 Dollars ($5,600,000.00), subject to adjustment
as provided below.
(iii) In the event the Option is exercised at any time during a
Renewal Term of this Lease, the Option Price shall be the amount of Five
Million Six Hundred Thousand and No/100 Dollars ($5,600,000.00), less a
dollar for dollar reduction equal to the amount of the aggregate Rent paid
during the Renewal Term(s) of this Lease prior to the closing of the
Option, subject to adjustment as provided below.
The amount of the Option Price shall be adjusted as provided under the
terms of this Lease, the Equipment Lease and the Asset Agreement, and as a
result of the proration and allocation of closing costs as provided below. To
the extent that for any reason an allocation of the Option Price is required as
between the Premises and the Equipment,
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<PAGE>
such allocation shall be made based upon the respective fair market values
thereof as of the date of the Exercise Notice or as of the date on which Tenant
attempts delivery of the Exercise Notice. The Option Price shall be payable in
cash or other readily available funds to Tewel and Landlord jointly, at the time
of closing. It is understood and agreed that Tewel and Landlord shall agree to
the allocation of the Option Price as between Tewel and Landlord, and that
Tenant shall be deemed to have satisfied its obligation by the tender of such
funds to Quadland, without the requirement of any consent from Tewel.
d. The Property. Specifically, and without limiting the generality of
------------
the foregoing, the Property subject to the exercise of the Option shall include
the Real Property and the Equipment, together with such lease agreements, sales
and service contracts, warranties, guarantees, indemnities, supplier and vendor
contracts, customer and supply lists, intellectual property rights, books and
records and all other assets used in the operation of the business of the
Buckeye Travel Mall, as identified and selected by Tenant, as well as all right
to use of the name "Buckeye Travel Mall". The assets shall not include any
accounts receivable, accrued expenses, cash or goodwill, and Tenant shall not be
obligated to assume any contracts, leases or other obligations of Landlord or
Tewel other than those specifically selected and accepted.
e. Conveyance and Closing. At the time of closing of the Option:
----------------------
(i) Landlord shall convey to Tenant good, marketable and indefeasible
title to the Real Property by general warranty deed, in form acceptable to
Tenant, free and clear of all liens, claims and encumbrances, and subject only
to taxes for the year during which the closing occurs, prorated to the date of
such closing date, and to those matters shown on Schedule B of the Title
Commitment attached hereto and made a part hereof as Exhibit G (the "Permitted
Exceptions"). At the time of closing Tenant shall be provided an ALTA standard
form Owner's Policy of Title Insurance issued by the Title Company covering the
Real Property and the Premises in the amount of $5,600,000.00, insuring good,
marketable, and indefeasible title to the Property in favor of Tenant, free and
clear of all liens and encumbrances, and subject only to the Permitted
Exceptions.
Within fifteen (15) days of the Exercise Notice, Landlord, at its sole cost
and expense shall provide to Tenant an updated Title Commitment issued by the
Title Commitment, confirming the current liens, encumbrances, claims and other
matters of record affecting the Real Property. Landlord hereby represents and
warrants to Tenant that as of the date of this Agreement the Real Property is
subject a first lien mortgage in favor of National City Bank, Northeast, a
national banking association (the "Mortgage Lender"), securing the payment of
that certain promissory note in the original principal amount of Three Million
Five Hundred Thousand and No/100 Dollars ($3,500,000.00; the "Loan"), signed by
Landlord and payable to the Mortgage Lender. As of the date of this Lease the
unpaid principal balance of the Loan is $3,500,000.00 (the "Principal Balance").
Landlord hereby covenants and agrees that during the term of the Option, that
Landlord will not mortgage, pledge, hypothecate, transfer, grant a lien in or
further
24
<PAGE>
encumber the Real Property, and that the indebtedness secured thereby shall
never be greater than $3,500,000.00.
(ii) Tewel shall convey to Tenant good, marketable and indefeasible title
to the Equipment by general warranty bill of sale in form satisfactory to Tenant
in all respects, free and clear of all liens. Tewel warrants and represents to
Tenant that as of the Commencement Date of the Equipment Lease, the Equipment is
subject only to the liens and security interests in favor of the Mortgage Lender
securing the Loan. Tewel hereby covenants and agrees that during the term of
the Option that Tewel will not mortgage, pledge, hypothecate, transfer, grant a
security interest in or further encumber the Equipment, and that the
indebtedness secured thereby shall never be greater than $3,500,000.00. Within
fifteen (15) days of the Exercise Notice and then again as of the date of
closing of the Option, Tewel at its sole cost and expense shall furnish to
Tenant then current UCC lien, tax and judgment searches with respect to Tewel
and Landlord from the Secretary of State's office in Ohio and the County Clerk's
Records in Wood County, Ohio reflecting any liens and security interests against
the Equipment and any other matters affecting Landlord, Tewel and the Equipment,
which searches shall be satisfactory to Tenant in all respects. The Option
Price shall be disbursed at closing in such a manner so as to secure releases of
any Equipment Liens as of the date of closing of the Option.
(iii) Contemporaneously with the execution of this Lease, Landlord and
Tewel shall execute the General Warranty Deed, Bill of Sale and such other
additional documents as Tenant may request, which shall be required to be
delivered in connection with the closing of the Option, and deposit the same
with the Title Company to be held in escrow pending the closing of the Option,
pursuant to the terms of that certain Escrow Agreement to be executed by and
between Landlord, Tewel, Tenant and the Title Company. Any fee to be charged by
the Title Company for serving as provided under the terms of the Escrow
Agreement shall be borne, one-half (1/2) by Landlord and Tewel and one-half
(1/2) by Tenant. In addition, Landlord and Tewel hereby covenant and agree that
at the time of closing of the Option that they each shall execute such
additional documents of transfer and assignment as may be necessary to complete
the acquisition of the Property, including without limitation the assignment of
all warranties and guarantees with respect to any of the Property, any required
withdrawal or assignment of trade/business names as to "Buckeye Travel Mall",
and any assignments or re-registrations with regards to the USTs.
(iv) At the time of closing of the Option, Tenant shall deliver the
Option Price, as adjusted, to Landlord, for the benefit of Landlord and Tewel,
in cash or by wire transfer or cash equivalent. Tenant shall pay the expense of
any premium for Mortgagee's Title Insurance coverage, one-half (1/2) of the
escrow fee of the Title Company for serving under the terms of the Escrow
Agreement, its own attorney's fees and the usual and customary recording charges
allocated to the buyer in similar type transactions.
As to the payment of the premiums for the Leasehold Owner's Policy of Title
Insurance to be provided to Tenant pursuant to the terms of
25
<PAGE>
the Acquisition Agreement upon the closing of the transactions thereunder and in
connection with the execution and delivery of this Lease, and with respect to
the Owner's Policy of Title Insurance to be provided to Tenant upon the closing
of the Option, Landlord and/or Tewel shall pay the first $10,000.00 of such
premium expense and Tenant on the one hand, and Landlord and Tewel on the other
shall share equally the additional premium expense in excess of $10,000.00.
Landlord and Tewel shall also pay one-half (1/2) of the Title Company's
escrow fee, the survey expense, if any, any transfer or real estate tax
associated with the conveyance of the Property, the expense associated with re-
registration of the USTs, the expense associated with the UCC lien, tax and
judgement searches and obtaining UCC lien release in regards thereto, and the
fees and the usual and customary document drafting and recording charges
allocated to the seller in similar type transactions.
(f). Default. In addition to the other rights and remedies provided
-------
under the terms of this Lease, in the event either party fails to perform any of
the covenants expressly set forth in this Section 20, then the non-defaulting
party shall be entitled to exercise all rights and remedies available at law or
in equity to enforce the terms of the Option, including without limitation, the
right to enforce specific performance. In the event such non-defaulting party
retains attorneys to protect or enforce its rights hereunder and prevails, then
the defaulting party agrees to pay the other party's reasonable attorney's fees
incurred by such other party for the enforcement of the terms hereof.
ARTICLE 21
MISCELLANEOUS PROVISIONS
SECTION 21.01: NOTICES. Notices hereunder shall be by certified mail, return
receipt requested, by facsimile transmission, or by overnight delivery service
(e.g., Federal Express) and addressed, as follows:
if to Tenant to: Petro Stopping Centers, L.P.
6080 Surety Drive
El Paso, Texas 79905
Attn: Legal Department
Phone No. (915) 774-4711
Telecopy No. (915) 774-7366
with a copy to: Kemp, Smith, Duncan & Hammond, P.C.
2000 Norwest Plaza
P.O. Box 2800
El Paso, Texas 79999-2800
Attn: Dane George, Esq.
Telecopy No. (915) 546-5360
if to Landlord and
Messrs. Yasechko: Tewel Corporation and
Quadland Corporation
7041 Truck World Blvd.
26
<PAGE>
Hubbard, Ohio 44425
Attention: Edward Yascehko, President
Phone No. (330) 534-1160
Telecopy No. (330) 534-6058
with a copy to: Ronald James Rice Co., LPA
48 West Liberty Street
Hubbard, Ohio 44425
Telecopy No. (330) 534-3933
or to such other address or addresses as either party may give to the other,
from time to time, by notice as herein provided. Notice shall be deemed given
two (2) days after deposit in the United States mail if sent certified mail,
next day delivery if by overnight courier service and upon telecopy confirmation
if by facsimile transmission. Notice of a change in the identity or address of
any person to whom notice of any type is to be given or payment of any monies is
to be made, shall be effective only thirty (30) days after receipt.
SECTION 21.02: WAIVER. Any failure by either Landlord or Tenant to enforce any
of the provisions of this Lease shall not be deemed a waiver of any of
Landlord's or Tenant's rights or remedies.
SECTION 21.03: CHANGES-MODIFICATIONS. This Lease is executed and delivered
pursuant to the Acquisition Agreement and is subject to the term and conditions
thereof. This Lease and the Acquisition Agreement contain the entire agreement
between the parties hereto as to the subject matters hereof. No modifications,
alterations, changes, waiver or estoppel to this Lease or any of the terms
hereof shall be valid or binding unless in writing and signed by a duly
authorized officer of the party to be charged.
SECTION 21.04: END OF TERM. Upon the expiration or termination of this Lease,
Tenant shall surrender possession of the Premises in general working order and
condition, except for wear and tear, damage by fire, the elements, or casualty,
and except for such damages or conditions not solely and directly caused by the
gross negligence of Tenant.
SECTION 21.05: TENANT'S PROPERTY. All trade fixtures, furniture, furnishings,
equipment and other personalty owned or installed by Tenant before or during the
term hereof shall remain Tenant's property, and Tenant, at any time and from
time to time, including but not limited to the expiration or termination of this
Lease, may, but shall not be obligated to remove same.
SECTION 21.06: HOLDOVER. Should Tenant holdover after the expiration of the
term, such holding over shall be deemed a tenancy from month-to-month subject to
the provisions, conditions and covenants in this Lease contained, and such
tenancy may be terminated upon one (1) month's notice in writing by either party
to the other.
SECTION 21.07: RIGHTS AND REMEDIES. The various rights and remedies of
Landlord and Tenant reserved herein shall be deemed to be cumulative, and,
unless otherwise expressed herein to the contrary, no
27
<PAGE>
one of them shall be deemed to be exclusive of any of the other rights, or
remedies as are now permitted, or may be hereafter allowed either by law or in
equity.
SECTION 21.08: SUCCESSORS AND ASSIGNS. The covenants, agreements and
obligations herein contained, except as herein otherwise specifically provided,
shall extend to, bind and inure to the benefit of the parties hereto and their
respective personal representatives, heirs, successors, and assigns.
SECTION 21.09: INVALIDITY OF ANY PROVISIONS. If any term or provision of this
Lease shall, to any extent, be held invalid or unenforceable, the remainder of
this Lease shall not be affected thereby, and each term and provision of this
Lease shall continue to be valid and be enforced to the fullest extent permitted
by law.
SECTION 21.10: JOINDER OF TEWEL CORPORATION. Landlord and Tewel have jointly
operated the Premises prior to the Effective Date of this Lease. While Landlord
is the owner of the Real Property and the Buildings, certain of the improvements
and Equipment are owned by Tewel. Tewel hereby consents to the transactions
contemplated herein, and does hereby lease all of its right, title and interest
in and to the Premises to Tenant, subject to the terms of this Lease. By
execution hereof Tewel agrees to be bound by the provisions of this Lease,
hereby makes each and every covenant, representation and agreement made herein
by Landlord to the extent of its ownership interest in and to the Premises and
hereby assumes and agrees to perform each and every obligation imposed upon the
Landlord hereunder, to the extent of its ownership of the Premises. Tewel joins
in this Lease for the further purpose of joining in and agreeing to the Option
herein granted to Tenant to purchase the Property.
SECTION 21.11: CHOICE OF LAW. THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO (OTHER THAN THE CHOICE OF LAW
PRINCIPLES THEREOF).
SECTION 21.12: MISCELLANEOUS.
(i) Whenever the words "Landlord" and "Tenant" appear herein, each shall
be applicable to one or more persons, as the case may be, the singular shall
include the plural, and the neuter to include the masculine and feminine, and if
there shall be more than one, the obligations hereunder shall be joint and
several.
(ii) Wherever in this Lease reference is made to the "term hereof", the
same shall be deemed to read "as extended" so as to include the period of
extensions if Tenant shall exercise its option(s) to extend.
(iii) The parties hereto agree that the law of the state in which the
Premises are located will apply to any interpretation of any of the covenants
and provisions of this Lease. The identity of the draftsperson of this Lease,
be it Landlord or Tenant, shall not affect the interpretation of this Lease.
28
<PAGE>
(iv) The headings used for the various Articles herein contained are for
convenient references only, and are not intended to define, construe or in any
manner limit the contents of such Articles.
IN WITNESS WHEREOF, Landlord and Tenant have caused these presents to be
signed by their respective duly authorized officers, and their corporate seals
to be affixed hereto, the day, month and year first above stated.
LANDLORD:
QUADLAND CORPORATION, an
Ohio corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TEWEL CORPORATION, a Delaware
corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
____________________________________________
EDWARD J. YASECHKO
____________________________________________
EDWARD T. YASECHKO
TENANT:
PETRO STOPPING CENTERS, L.P., a
Delaware limited partnership
By:_________________________________________
Name:_______________________________________
Title:______________________________________
29
<PAGE>
Situated in the Township of Bloom, County of Wood and State of Ohio: And more
particularly-described as follows:
And being a part of the west 1/2 of the northwest 1/4 and part of the west 1/2
of the southwest 1/4 of Section 31, Town 3 north, Range 11 east a tract of land
bounded and described as follows:
Beginning at the point of intersection of the centerline of State Highway
Route No. 18 with the west line of said Section 31, said point lying 1771.72
feet north of the southwest corner of said Section 31; thence from the above
described point of beginning and along the west line of said Section 31, north
no degrees 25 minutes 29 seconds east, a distance of 2094.62 feet to the
intersection of said Section line with the south right of way line of the
Baltimore and Ohio Railroad and lying 50 feet south of the centerline of the
main tracks thereof, thence with the south right of way line of said Railroad,
south 81 degrees 37 minutes 19 seconds east, a distance of 1143.46 feet to an
iron stake in the west right of way line of the Toledo and Ohio Central Railroad
and passing an iron stake set at 149.26 feet in the east limited Access right of
way of Interstate Highway No. 75; thence with the west right of way of the
Toledo and Ohio Central Railroad, south 01 degree 29 minutes 19 seconds east, a
distance of 16.50 feet to an iron stake; thence north 81 degrees 37 minutes 19
seconds west, a distance of 66.00 feet to an iron stake; thence south 01 degree
29 minutes 19 seconds east, a distance of 165.00 feet to an iron stake; thence
south 81 degrees 37 minutes 19 seconds east, a distance of 66.00 feet to an iron
stake in the west right of way of the Toledo and Ohio Central Railroad; thence
with said right of way line, south 01 degree 29 minutes 19 seconds east, a
distance of 861.00 feet to the P.C. of a curve; thence continuing with said
right of way and along a curve to the right with a central angle of 2 degrees 03
minutes 19 seconds and a radius of 11,290.51 feet, a distance of 405.00 feet to
the P.T. of said curve, the chord of said curve bearing south no degrees 27
minutes 39 seconds east, a distance of 404.98 feet; thence continuing with said
right of way line, south no degrees 34 minutes west, a distance of 478.25 feet
to the centerline of State Highway Route No. 18 and passing an iron stake set
30.11 feet therefrom; thence, with the centerline of said Highway, south 85
degrees 19 minutes 56 seconds west, a distance of 156.21 feet to the P.C. of a
curve; thence with said centerline being a curve to the right with a central
angle of 06 degrees 41 minutes 45 seconds and a radius of 3819.72 feet, a
distance of 446.39 feet, the chord of said curve bearing south 88 degrees 40
minutes 48 seconds west, a distance of 446.12 feet; thence continuing with said
centerline, north 87 degrees 38 minutes 19 seconds west, a distance of 554.55
feet to the point of beginning.
LESS AND EXCEPT THE FOLLOWING PARCEL:
(Continued on next page)
EXHIBIT "A"
(PAGE 1 OF 2)
<PAGE>
LESS AND EXCEPT THE FOLLOWING DESCRIBED PARCEL:
A parcel of land being a part of the Southwest quarter of Section 31,
Township 3 North, Range 11 East, Bloom Township, Wood County, Ohio, and being
more particuarly described as follows:
Commencing at the point of intersection of the centerline of State Route 18
with the West line of Section 31, said point being 1771.72 feet North of the
Southwest corner of Section 31;
thence South 87 degrees 58 minutes 19 seconds East, on the centerline of
State Route 18, a distance of 571.05 feet to a point;
thence Easterly, continuing on the centerline of State Route 18, along a
curve to the left, said curve having a radius of 3819.72 feet, a central angle
of 05 degrees 06 minutes 06 seconds, an arc length of 362.33 feet, a chord
bearing of North 89 degrees 19 minutes 28 seconds East and a chord length of
362.20 feet to a point, said point being the TRUE POINT OF BEGINNING of the
parcel herein described;
thence North 00 degrees 38 minutes 08 seconds East, a distance of 59.42
feet to an iron pin on the Northerly right of way line of State Route 18; thence
continuing North 00 degrees 38 minutes 08 seconds East, a distance of 404.88
feet to an iron pin;
thence North 00 degrees 34 minutes 08 seconds West, a distance of 35.12
feet to an iron pin;
thence South 87 degrees 26 minutes 53 seconds East, a distance of 239.62
feet to an iron pin on the westerly right of way line of the Toledo & Ohio
Central Railroad;
thence South 00 degrees 34 minutes 00 seconds West, on a line being 50.00
feet Westerly of, as measured perpendicular to and parallel with the centerline
of the Westerly right of way line of the Toledo & Ohio Central Railroad, a
distance of 440.00 feet to an iron pin on the Northerly right of way line of
State Route 18; thence continuing South 00 degrees 34 minutes 00 seconds West on
the Westerly right of way line of the Toledo & Ohio Central Railroad, a distance
of 30.11 feet to a point on the centerline of State Route 18;
thence South 85 degrees 19 minutes 56 seconds West, on the centerline of
State Route 18, a distance of 156.21 feet to a point, said point being station
25+00.93 of the centerline stationing of State Route 18, as established by the
Ohio Department of Transportation;
thence Southwesterly, continuing on the centerline of State Route 18 and on
a curve to the right, said curve having a radius of 3819.72 feet, a central
angle of 01 degree 15 minutes 39 seconds, an arc length of 84.06 feet, a chord
bearing of South 85 degrees 57 minutes 46 seconds West, and a chord length of
84.05 feet; to the TRUE POINT OF BEGINNING of the parcel herein described,
containing 2.662 acres of land, more or less, as surveyed by Robert B.
Ernsberger, Registered Land Surveyor #5520, on October 18, 1988.
<PAGE>
MEMORANDUM OF LEASES AND PURCHASE OPTION
----------------------------------------
This is a Memorandum of Leases and Purchase Option by and between QUADLAND
CORPORATION, an Ohio corporation ("Quadland"), whose mailing address is 7041
Truck World Boulevard, Hubbard, Ohio 44425, TEWEL CORPORATION, a Delaware
corporation ("Tewel"), whose mailing address is 7041 Truck World Boulevard,
Hubbard, Ohio 44425, and PETRO STOPPING CENTERS, L.P., a Delaware corporation
("Lessee"), whose mailing address is 6080 Surety Drive, El Paso, Texas 79905.
Quadland and Tewel hereby grant, demise and lease the premises and equipment
described below to Lessee upon the following terms:
Property Lease:
- --------------
Date of Lease: August 4, 1997
Description of Leased Premises: See attached Exhibit "A"
Date of commencement: August 5, 1997
Term: Four (4) years
Renewal Options: Four (4) options to renew for a period of
five (5) years each
Purchase Option: The Lease grants to Tenant the right to
purchase the Premises at any time during
the term of the Lease.
Equipment Lease:
- ---------------
Date of Lease: August 4, 1997
Description of Leased Equipment: See attached Exhibit "B"
Date of commencement: August 5, 1997
Term: Four (4) years
Renewal Options: Four (4) options to renew for a period of
five (5) years each
Purchase Option: The Lease grants to Tenant the right to
purchase the Equipment at any time during
the term of the Lease.
The purpose of this Memorandum of Leases and Purchase Option is to give
record notice of the Leases and of the rights created thereby, all of which are
hereby confirmed.
EXHIBIT "B"
<PAGE>
IN WITNESS WHEREOF the parties have executed this Memorandum of Leases and
Purchase Options as of the dates set forth in their respective acknowledgements.
QUADLAND:
QUADLAND CORPORATION, an Ohio corporation
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
TEWEL:
TEWEL CORPORATION, a Delaware corporation
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
LESSEE:
PETRO STOPPING CENTERS, L.P., a Delaware
limited partnership
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
<PAGE>
STATE OF ___________ )
)
COUNTY OF ___________ )
Before me, a notary public in and for said county, personally appeared
_________________________, known to me to be the person who, as
___________________________ of QUADLAND CORPORATION, an Ohio corporation, the
corporation which executed the foregoing instrument, signed the same, and
acknowledged to me that he did so sign said instrument in the name and upon
behalf of said corporation as such officer; that the same is his free act and
deed as such officer and the free and official act and deed of said corporation;
that he was duly authorized thereunto by its board of directors; and that the
seal affixed to said instrument is the official seal of said corporation.
In testimony whereof, I have hereunto subscribed my name, and affixed my
official seal, this _______ day of ________________, 1997.
_________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF _________________
My commission expires:
_____________________
STATE OF ___________ )
)
COUNTY OF ___________ )
Before me, a notary public in and for said county, personally appeared
_________________________, known to me to be the person who, as
___________________________ of TEWEL CORPORATION, a Delaware corporation, the
corporation which executed the foregoing instrument, signed the same, and
acknowledged to me that he did so sign said instrument in the name and upon
behalf of said corporation as such officer; that the same is his free act and
deed as such officer and the free and official act and deed of said corporation;
that he was duly authorized thereunto by its board of directors; and that the
seal affixed to said instrument is the official seal of said corporation.
In testimony whereof, I have hereunto subscribed my name, and affixed my
official seal, this _______ day of ________________, 1997.
________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF _________________
My commission expires:
____________________
<PAGE>
STATE OF ___________ )
)
COUNTY OF ___________ )
Before me, a notary public in and for said county, personally appeared
_________________________, known to me to be the person who, as
___________________________ of PETRO STOPPING CENTERS, L.P., a Delaware limited
partnership, the partnership which executed the foregoing instrument, signed the
same, and acknowledged to me that he did so sign said instrument in the name and
upon behalf of said partnership as such officer; that the same is his free act
and deed as such officer and the free and official act and deed of said
partnership; that he was duly authorized thereunto by said partnership.
In testimony whereof, I have hereunto subscribed my name, and affixed my
official seal, this _______ day of ________________, 1997.
________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF _________________
My commission expires:
_____________________
<PAGE>
LENDER ESTOPPEL AND NON-DISTURBANCE
AGREEMENT
THIS LENDER ESTOPPEL AND NON-DISTURBANCE AGREEMENT (the "Agreement") is
made and entered into as of the ____ day of ______________, 1997 (the "Effective
Date"), by and between NATIONAL CITY BANK, NORTHEAST, a national banking
association, whose address is One Cascade Plaza, Akron, Ohio 44308 ("Lender" or
"Mortgagee"), QUADLAND CORPORATION, an Ohio corporation ("Quadland") and TEWEL
CORPORATION, a Delaware corporation ("Tewel"), whose addresses are 7041 Truck
World Boulevard, Hubbard, Ohio 44425 (Quadland and Tewel being collectively
referred to as "Mortgagor") and PETRO STOPPING CENTERS, L.P., a Delaware limited
partnership, whose address is 6080 Surety Drive, El Paso, Texas 79905,
("Tenant").
W I T N E S S E T H:
WHEREAS, Mortgagor is indebted to Lender in accordance with the terms of
that certain Promissory Note (the "Note") dated July 22, 1997, in the original
principal amount of $3,500,000.00 (the "Loan"). The Loan is secured by (i) an
Open-End Mortgage (hereinafter called the "Mortgage") of even date with the
Note, of record in Volume _____, Page _____ Wood County, Ohio covering the real
property located in Bloom Township, Wood County, Ohio described on Exhibit "A"
attached hereto and made a part hereof (the "Real Property"), which Real
Property is owned by Quadland; (ii) an Absolute Assignment of Rents and Leases
(the "Assignment") covering the Real Property and all leases with respect
thereto, dated the same date as the Note and being of record in Volume ______,
Page _____, Real Property Records, Bloom Township, Wood County, Texas; and (iii)
a first lien security interest in and to the personal property described on
Exhibit "B" attached hereto and made a part hereof owned by Mortgagor (the
"Personal Property", and together with the Real Property, collectively the
"Mortgaged Property"), as evidenced by a Security Agreement of even date with
the Note and UCC-1 Financing Statements (collectively, the "Security
Instruments", and together with the Mortgage and Assignment, collectively, the
"Bank Liens") of record in the Secretary of State's Office of Ohio and the
County Clerk's Records of Wood County, Ohio; and
WHEREAS, Tenant and Mortgagor contemplate the execution of that certain
Agreement dated _________________, 1997 (the "Asset Agreement"), pursuant to
which Mortgagor and Tenant expect to enter into certain agreements relating to
the Mortgaged Property, including without limitation a Real Property Lease,
substantially in the form of Exhibit "C" attached hereto and made a part hereof
and an Equipment Lease, substantially in the form of Exhibit "D" attached hereto
and made a part hereof (the Asset Agreement, Real Property Lease, Equipment
Lease, together with the other documents contemplated to be executed pursuant to
the terms of the Asset Agreement being collectively referred to as the
"Transaction Documents"); and
WHEREAS, the Transaction Documents provide for among other things, that
Tenant lease the Mortgaged Property from Mortgagor and that Tenant be granted
the exclusive option to purchase the Mortgaged Property on the terms and
conditions as set forth in the Real Property Lease (the "Purchase Option"); and
EXHIBIT "C"
<PAGE>
WHEREAS, it is a condition of closing under the Asset Agreement that
Tenant be provided with certain assurances from Lender with respect to its
rights under the Transaction Documents and the Purchase Option; and
WHEREAS, Mortgagor has requested and Lender has agreed, after determining
that the transactions contemplated by the Transaction Documents are in the best
interest of both Mortgagor and Lender, to execute this Agreement in order to
provide the required assurances to Tenant and in anticipation of the closing
under the Asset Agreement.
NOW THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration, including without
limitation the premises and agreements set forth herein, Mortgagor, Mortgagee
and Tenant represent, warrant and agree as follows:
1. Attached hereto as Exhibit "E-1" through "E-___" are true and correct
copies of each of the agreements, instruments, security agreements and other
documents (collectively the "Loan Documents") executed by and between Lender and
Mortgagor, any shareholders of Mortgagor, any guarantors of the Loan, and any
other parties with respect to the Loan. There are no Loan Documents with
respect to the Loan other than those referenced in Exhibit "E-1" through "E-
____" and there have been no amendments or modifications to the terms and
provisions of the Loan Documents. So long as the Transaction Documents are in
effect, Mortgagor and Lender will not amend, modify, renew or extend the terms
of the Loan or the Loan Documents without the prior written consent of Tenant.
As of the Effective Date the unpaid principal balance owing on the Loan is
$___________________, with interest having been paid to ___________________,
1997. The next installment of principal in the-------------------amount of
$___________________ and the next installment of accrued interest in the amount
of $______________________ is due and owing on ____________________, 1997.
All amounts available for advance under the Loan have been disbursed as of
the Effective Date, and there is no commitment between Lender and Mortgagor to
readvance any amounts under the Loan or advance any additional funds to be
secured by the Mortgaged Property. Lender and Mortgagor represent to Tenant
that as of the Effective Date neither Mortgagor or any of its shareholders are
obligated to Lender under the terms of any other loans or commitments and the
sole indebtedness owing by Mortgagor and its shareholders to Lender are the
amounts outstanding under the Note. Notwithstanding the provisions of the
Mortgage, which purport to secure other indebtedness between Lender and
Mortgagor, Lender and Mortgagor hereby agree and represent that no such other
amounts are due and owing, are contemplated, or will be advanced and secured by
the Real Property, other than such advances that Lender determines are required
to be advanced to pay taxes, assessments and insurance premiums in order to
protect and preserve the Real Property. Lender and Mortgagor agree that as the
amount outstanding under the Loan is reduced by the scheduled repayment thereof,
no additional advances will be made under the Note, Loan Documents, the Bank
Liens or otherwise, other than for the purposes provided in this paragraph 1.
2. Lender and Mortgagor each hereby warrant and represent that as of the
date hereof no event of default has occurred under the Loan Documents and no
condition exists which with the giving of notice, lapse of time or both or
otherwise would constitute such an event of default.
<PAGE>
3. Lender acknowledges that pursuant to the terms of the Purchase Option,
Mortgagor has agreed to sell the Mortgaged Property to Tenant for the amount of
FIVE MILLION SIX HUNDRED AND NO/100 DOLLARS ($5,600,000.00) (the "Option
Price"). Lender also acknowledges that the Option Price is subject to
adjustment in accordance with the terms of the Transaction Documents and that
the Transaction Documents preclude further encumbrances of the Mortgaged
Property. By execution hereof Mortgagor and Lender hereby modify and amend the
terms of the Loan Documents so as to delete the provisions therein providing
that the Mortgaged Property secure "future indebtedness" owing from Mortgagor to
Lender. It is agreed by the parties hereto that at no time shall the amount
secured by the Mortgaged Property exceed the principal amount outstanding under
the Note, plus interest accrued thereon, and the advances contemplated in
paragraph 1, if any, made by Lender to protect and preserve the Real Property,
and in any event the aggregate of such amounts secured by the Mortgaged Property
shall always be less than $5,600,000.00.
4. Lender hereby consents to the execution of the Real Property Lease and
the Equipment Lease, and to the granting of the Purchase Option with regards to
the Mortgaged Property as required under the Loan Documents, consents to the
disposition of the Mortgaged Property to Tenant, and to the liens, charges,
claims, rights and encumbrances created in favor of Tenant as a result thereof,
and warrants and represents that the execution and performance of the terms
thereof by Mortgagor shall not constitute an event of default or create a
condition which with the giving of notice or lapse of time, or both or otherwise
would constitute such an event of default under the Loan Documents and such
Transaction Documents are fully effective as between Lender, Mortgagor and
Tenant in accordance with their terms.
Lender further acknowledges that the terms of the Real Property Lease and
the Equipment Lease are satisfactory to Lender, and Lender hereby waives any
provision in the Loan Documents which would entitle or require the amendment or
modification of the terms of such Real Property or Equipment Lease at the
request or instance of Lender. In addition, Lender further agrees that
Mortgagor and Tenant may, during the term of the Real Property Lease and
Equipment Lease, modify the rents payable under the Real Property Lease and/or
the Equipment Lease as a result of the application of any provision for the
offset of rents by Tenant thereunder, and may execute such modifications and
amendments to the Real Property Lease and Equipment Lease as Mortgagor and
Tenant may agree upon, without the requirement of notice to or the consent or
joinder of Lender.
5. Lender hereby covenants and agrees that notwithstanding anything in
the Loan Documents to the contrary or the fact that the Transaction Documents
are junior to the Loan Documents, so long as the Real Property Lease and/or the
Equipment Lease shall be in full force and effect and not terminated and Tenant
shall not have failed to cure a default thereunder for such period of time after
notice as would entitle Mortgagor, as the landlord thereunder, to terminate the
Lease:
(a) To the extent of any inconsistency between the terms of the
Transaction Documents and the Loan Documents, including without limitation
the use of insurance proceeds, application of any condemnation award, the
right of Tenant to make alterations or improvements to the Real Property,
the right of Tenant to remove the Personal Property from the Real Property,
dispose of the Personal
<PAGE>
Property in accordance with the terms of the Equipment Lease or replace the
Personal Property, the right of Tenant to grant a leasehold mortgage on its
interest under the Real Property Lease or a security interest in its rights
under the Equipment Lease and with respect to the Mortgaged Property, or
the right of Tenant to further transfer and assign rights under the Real
Property Lease and/or the Equipment Lease, the terms of the Transaction
Documents will control.
(b) Lender shall not name or join Tenant as a party-defendant or otherwise
in any suit, action or proceeding to enforce any rights given to Lender or
any other holder of the rights under the Loan Documents, nor will the Real
Property Lease and/or the Equipment Lease, the terms thereof or the rights
granted to Tenant thereunder, including the Purchase Option, be terminated
as the result of any such suit, action or proceeding.
(c) The Loan Documents do not cover and shall not be construed as
subjecting in any manner to the lien thereof, any trade fixtures, signs,
equipment, fixtures, or other personal property furnished or installed by
Tenant on the Real Property or furnished in substitution or replacement of
any of the Personal Property. As to any of the Personal Property leased to
Tenant under the terms of the Equipment Lease which, pursuant to the terms
thereof Tenant may desire to replace, Tenant's sole obligation with regards
thereto shall be to tendered such Personal Property in its then current "as
is" condition to Mortgagor.
(d) Lender hereby recognizes and agrees to be bound by, and the Loan
Documents are hereby made subject to the Purchase Option. In the event it
should become necessary to foreclose the Bank Liens, either judicially or
non-judicially, to accept a deed or other conveyance of the Mortgaged
Property in lieu thereof, or otherwise to enforce collection of the Loan,
to enforce rights and remedies under the Loan Documents, or to realize on
the Bank Liens securing the Loan, Lender hereby covenants and agrees that
Tenant may continue in possession of the Mortgaged Property in accordance
with the terms and provisions of the Real Property Lease and the Equipment
Lease, and that the terms and provisions of the Purchase Option shall
remain in full force and effect thereafter and shall not be extinguished as
a result of any foreclosure sale of the Mortgaged Property, either judicial
or non-judicial, or as a result of any deed in lieu or other conveyance
thereof, or as a result of any other collection action pursued by Lender.
6. Lender hereby agrees, on behalf of itself and its successors and
assigns, that upon acquisition of title to the Mortgaged Property by Lender, or
any future holder of the Bank Liens, any purchaser at a foreclosure sale, or any
other party, or the successor in title of any of them (the "New Owner"), the
Transaction Documents shall continue in full force and effect, without the
necessity for executing any new leases or agreements, as a direct obligations
between Tenant and the New Owner upon all of the such terms, covenants and
provisions contained in the Real Property Lease, Equipment Lease, Purchase
Option and other Transaction Documents, and in such event the New Owner shall
assume and perform each and every obligation thereunder from and after the date
such New Owner succeeds to the interest of the Mortgagor or Lender, and Tenant
shall have the same rights and remedies against the New Owner for the breach of
<PAGE>
any covenant contained in the Transaction Documents that Tenant would have had
against Mortgagor.
7. Tenant, by its execution hereof or the execution and delivery of the
Transaction Documents, is not assuming any liability or obligation under the
Loan Documents with respect to the Loan.
8. Lender hereby covenants and agrees that so long as the Transaction
Documents are in effect, Lender will mail to Tenant at the address provided
herein, or at such other place as may be hereafter from time to time designated
in writing, (i) written notice of any default by Mortgagor under the terms of
the Loan Documents or of any event which would be an event of default by
Mortgagor under the terms of the Loan Documents with the giving of notice or the
lapse of time or both or otherwise and (ii) a copy of all notices which Lender
may from time to time serve upon Mortgagor pursuant to the terms and provisions
of the Loan Documents; and provide Tenant, at its sole election, the opportunity
to cure any such breach or default within not less than thirty (30) days after
receipt of such notice. To the extent Tenant elects to cure any default by
Mortgagor under the terms of the Loan Documents, Mortgagor, Lender and Tenant
agree that the amounts expended in that regard shall occasion a dollar for
dollar reduction against either rents to come due under the Real Property and/or
Equipment Lease or in the Option Price.
9. In the event Lender shall elect to proceed with foreclosure of the
Mortgaged Property, to accept a deed lieu thereof, or otherwise seek to collect
the Loan and pursue its rights and remedies under the Loan Documents and Bank
Liens, Lender shall give Tenant at least thirty (30) days prior written of any
such action and allow Tenant, at its option, sufficient time to close the
acquisition of the Mortgaged Property in accordance with the terms of the
Purchase Option. Alternatively, and in addition thereto, Lender hereby
covenants and agrees, on behalf of itself and its successors and assigns, that
should Tenant elect not exercise the Purchase Option and acquire the Mortgaged
Property prior to any foreclosure sale, following any foreclosure sale or any
other acquisition of the Mortgaged Property by Lender or a New Owner, that the
Lender or New Owner will recognize the terms of the Real Property Lease and
Equipment Lease as provided herein and will, upon the exercise of the Purchase
Option by Tenant, sell the Mortgaged Property to Tenant in accordance with the
terms of the Option Agreement, for the Option Price, as adjusted as provided
herein and under the terms of the Transaction Documents, free and clear of all
liens, encumbrances, and restrictions, other than easements and rights-of-way of
record and/or apparent on the Real Property, as reflected on the Title
Commitment attached hereto as Exhibit "F".
10. This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio (other than the choice of law principles thereof).
11. This Agreement shall bind and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns.
12. This Agreement contains the entire agreement between the parties and
cannot be changed, modified, waived or cancelled except by an agreement in
writing executed by the party against whom enforcement of such modification,
change, waiver or cancellation is sought.
<PAGE>
13. Any notices required hereunder shall be given by personal delivery or
by certified mail, return receipt requested, to the addresses provided below,
and shall be deemed effective two (2) days after the deposit in the United
States Mail, if sent by certified mail, or upon actual receipt if by personal
delivery. Notices shall be sent as follows, to wit:
If to Lender:
National City Bank, Northeast
Attn: _________________________________
One Cascade Plaza
Akron, Ohio 44308
Telephone Number: (___) _____________
Fax Number: (___) _____________
If to Mortgagor:
Quadland Corporation and
Tewel Corporation
Attn: _________________________________
7041 Truck World Boulevard
Hubbard, Ohio 4425
Telephone Number: (___) ______________
Fax Number: (___) ____________
If to Tenant:
Petro Stopping Centers, L.P.
Attn: Legal Department
6080 Surety Drive
El Paso, Texas 79905
Telephone Number: (915) 779-4711
Fax Number: (915) 774-7366
14. Each of Mortgagor, Mortgagee and Tenant agree to execute a memorandum
of this Agreement for recording in the Real Property Records of Wood County,
Ohio.
15. This Agreement and the covenants herein contained are intended to run
with the Real Property.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement to
be effective as of the day and year first above written.
LENDER:
ATTEST: NATIONAL CITY BANK, NORTHEAST,
a national banking association
By::_____________________ By:___________________________________
Name:____________________ Name:_________________________________
Title:___________________ Title:________________________________
<PAGE>
TENANT:
PETRO STOPPING CENTERS, L.P., a
Delaware limited partnership
By:______________________________________
Name:____________________________________
Title:___________________________________
MORTGAGOR:
ATTEST: QUADLAND CORPORATION, an Ohio corporation
By::_____________________ By:______________________________________
Name:____________________ Name:____________________________________
Title:___________________ Title:___________________________________
ATTEST: TEWEL CORPORATION, a Delaware corporation
By::_____________________ By:______________________________________
Name:____________________ Name:____________________________________
Title:___________________ Title:___________________________________
<PAGE>
STATE OF ___________ )
)
COUNTY OF ___________ )
Before me, a notary public in and for said county, personally appeared
_________________________, known to me to be the person who, as
___________________________ of NATIONAL CITY BANK, NORTHEAST a national banking
association, the association which executed the foregoing instrument, signed the
same, and acknowledged to me that he did so sign said instrument in the name and
upon behalf of said association as such officer; that the same is his free act
and deed as such officer and the free and official act and deed of said
association; that he was duly authorized thereunto by its board of directors;
and that the seal affixed to said instrument is the official seal of said
association.
In testimony whereof, I have hereunto subscribed my name, and affixed my
official seal, this _______ day of ________________, 1997.
_________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF _________________
My commission expires:
_____________________
STATE OF _________ )
)
COUNTY OF _________ )
Before me, a notary public in and for said county, personally appeared
_________________________, known to me to be the person who, as
___________________________ of PETRO STOPPING CENTERS, L.P., a Delaware limited
partnership, the partnership which executed the foregoing instrument, signed the
same, and acknowledged to me that he did so sign said instrument in the name and
upon behalf of said partnership as such officer; that the same is his free act
and deed as such officer and the free and official act and deed of said
partnership; that he was duly authorized thereunto by said partnership.
In testimony whereof, I have hereunto subscribed my name, and affixed my
official seal, this _______ day of ________________, 1997.
_________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF _________________
My commission expires:
____________________
<PAGE>
STATE OF ___________ )
)
COUNTY OF ___________ )
Before me, a notary public in and for said county, personally appeared
_________________________, known to me to be the person who, as
___________________________ of QUADLAND CORPORATION, an Ohio corporation, the
corporation which executed the foregoing instrument, signed the same, and
acknowledged to me that he did so sign said instrument in the name and upon
behalf of said corporation as such officer; that the same is his free act and
deed as such officer and the free and corporate act and deed of said
corporation; that he was duly authorized thereunto by its board of directors;
and that the seal affixed to said instrument is the official seal of said
corporation.
In testimony whereof, I have hereunto subscribed my name, and affixed my
official seal, this _______ day of ________________, 1997.
________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF _________________
My commission expires:
____________________
<PAGE>
STATE OF ___________ )
)
COUNTY OF ___________ )
Before me, a notary public in and for said county, personally appeared
_________________________, known to me to be the person who, as
___________________________ of TEWEL CORPORATION, a Delaware corporation, the
corporation which executed the foregoing instrument, signed the same, and
acknowledged to me that he did so sign said instrument in the name and upon
behalf of said corporation as such officer; that the same is his free act and
deed as such officer and the free and corporate act and deed of said
corporation; that he was duly authorized thereunto by its board of directors;
and that the seal affixed to said instrument is the official seal of said
corporation.
In testimony whereof, I have hereunto subscribed my name, and affixed my
official seal, this _______ day of ________________, 1997.
________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF _________________
My commission expires:
____________________
AFTER RECORDING, MAIL TO:
PETRO STOPPING CENTERS, L.P.
6080 SURETY DRIVE
EL PASO, TEXAS 79905
<PAGE>
PERMITTED LIENS, ENCUMBRANCES AND RESTRICTIONS ON THE PREMISES
Quadland Corporation and Tewel Corporation (collectively, "Mortgagor") are
indebted to National City Bank, Northeast, a national banking association, in
accordance with the terms of that certain Promissory Note (the "Note") dated
July 22, 1997, in the original principal amount of $3,500,000.00 (the "Loan").
The Loan is secured by (i) an Open-End Mortgage (hereinafter called the
"Mortgage") of even date with the Note, of record in Volume _____, Page _____
Wood County, Ohio covering the real property located in Bloom Township, Wood
County, Ohio described on Exhibit "B" of this Lease (the "Real Property"), which
Real Property is owned by Quadland; (ii) an Absolute Assignment of Rents and
Leases (the "Assignment") covering the Real Property and all leases with respect
thereto, dated the same date as the Note and being of record in Volume _______,
Page _____, Real Property Records, Bloom Township, Wood County, Texas; and (iii)
a first lien security interest in and to the personal property described on
Exhibit "A" of this Lease owned by Mortgagor (the "Personal Property", and
together with the Real Property, collectively the "Mortgaged Property"), as
evidenced by a Security Agreement of even date with the Note and UCC-1 Financing
Statements (collectively, the "Security Instruments", and together with the
Mortgage and Assignment, collectively, the "Bank Liens") of record in the
Secretary of State's Office of Ohio and the County Clerk's Records of Wood
County, Ohio.
EXHIBIT "D"
<PAGE>
TENANT IMPROVEMENTS
RESTAURANT
- ----------
Re-image and Rehab to include items such as:
Install new carpet
Upgrade salad bar and buffet
Replace computer system
Modify decor and signs
DIESEL FUEL OPERATIONS
- ----------------------
Upgrade truck scale
Add remote read at fuel desk with cardreaders at the fuel dispensers
Re-image diesel fuel canopy and dispensers
Upgrade exterior lighting
Add approximately 43,000 square yards of asphalt for truck parking area
CONVENIENCE STORE
- -----------------
New dispensers
Re-image canopy
Paint interior and exterior
Modify C-store interior
TRAVEL STORE
- ------------
Modify signage
Remodel store
LUBE FACILITY
- -------------
Add bays, two with pits
Install underground tanks for oil and waste storage
Remodel and re-image
EXHIBIT "E"
<PAGE>
List of Registered Underground Storage and Other Tanks
LIST OF UNDERGROUND STORAGE TANKS
1) 20,000 GAL. REG. #533202
2) 20,000 GAL. REG. #533183
3) 20,000 GAL. REG. #533178
4) 20,000 GAL. REG. #533177
5) 12,000 GAL. REG. #522984
6) 12,000 GAL. REG. #533034
7) 4,000 GAL. REG. #533234
EXHIBIT "F"
<PAGE>
PERMITTED ENCUMBRANCES
----------------------
1. Taxes for the years 1997 and thereafter.
2. The right of the public and others in and to that portion of property
within the right-of-way of State Highway 18.
3. Easement to Anna M. Biehler Estate for ingress and egress across a right-
of-way owned by Central Ohio Light and Power Company of record March 20,
1940 in volume 251, page 429, Wood County Records.
4. Reservation of ownership and rights to use a tile drain as shown in Deeds
filed of record in volume 282, pages 570, 573 and 575, Wood County records.
5. Utility easement to Ohio Power Company filed of record in volume 364, page
315, Wood County records; and partial release for highway purposes for the
State of Ohio filed of record in volume 406, page 369 of Wood County
Records and a release of partial premises filed of record in volume 501,
page 737, Wood County records.
6. Utility easement to Ohio Power Company of record in volume 366, page 175,
Wood County Records, and a partial release for highway purposes to the
State of Ohio of record in volume 404, page 537, Wood County records.
7. Utility easement to Ohio Power Company of record in volume 367, page 449,
Wood County records.
8. Release of premises for highway purposes to the State of Ohio of record in
volume 380, page 324, Wood County records.
9. Deed of easement to Ohio Power Company of record in volume 392, page 89,
Wood County records.
10. Deed of easement to Ohio Power Company of record in volume 632, page 721,
Wood County records.
11. Deed of easement to Ohio Power Company of record in volume 634, page 28,
Wood County records.
12. Easement agreement between Quadland Corporation and McDonald's Corporation
of record in volume 634, page 496, Wood County records.
13. Easement agreement between McDonald's Corporation and Quadland Corporation
of record in volume 634, page 507, Wood County records.
14. Deed of easement to Ohio Power Company of record in volume 644, page 552,
Wood County records.
EXHIBIT "G"
<PAGE>
15. Usage restrictions in Deeds of record in volume 492, page 8, and volume
392, page 11, Wood County records.
16. Easement for highway purposes to the State of Ohio of record in volume
235, page 509, Wood County records.
17. Easements for highway purposes to the State of Ohio of record in volume
361, page 655, Wood County records.
18. Conveyance to the Baltimore and Ohio, and Chicago Railroad of record in
volume 52, page 582, Wood County records.
19. Conveyance of the Toledo, Columbus and Southern Railway Company of record
in volume 83, page 88, Wood County records.
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